No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly: (i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal; (ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or (iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or (iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 7 contracts
Sources: Agreement and Plan of Merger (Fox Corp), Agreement and Plan of Merger (Walt Disney Co/), Agreement and Plan of Merger (Twenty-First Century Fox, Inc.)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article VIII, except as expressly permitted by this Section 5.026.3, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallParent shall not, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officersofficers and employees not to, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as shall instruct its “Representatives”) Representatives not to, directly or indirectly:
(i) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company a Parent Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating with any Person regarding any Parent Acquisition Proposal;
(iii) provide any non-public information or data concerning Parent or any of its Subsidiaries to any Company Person in connection with any Parent Acquisition Proposal Proposal;
(iv) approve or recommend, make any public statement approving or recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to to, a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Parent Acquisition Proposal. The Company Parent shall, and the Company Parent shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Parent Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Parent Acquisition Proposal. The Company will promptly inform ; provided that the Persons referred foregoing shall not restrict Parent from permitting a Person to orally request the waiver of a “standstill” or similar obligation or from granting such a waiver, in each case, to the preceding sentence extent Parent’s board of directors determines in good faith, after consultation with outside legal counsel, that the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection failure to take such action would be inconsistent with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Persondirectors’ fiduciary duties under applicable Law.
Appears in 4 contracts
Sources: Voting Agreement (Newhouse Broadcasting Corp), Merger Agreement (Scripps Networks Interactive, Inc.), Voting Agreement (Discovery Communications, Inc.)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article VIII, except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallthe Company shall not, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers and employees not to, and shall instruct its and their respective investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to with any Person regarding any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or;
(iii) provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal Proposal; or
(iv) approve or recommend, make any public statement approving or recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make to, a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. The Company will promptly inform shall take all actions necessary to enforce its rights under the Persons referred provisions of any “standstill” agreement between the Company and any Person (other than Parent), and shall not grant any waiver of, or agree to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making any amendment or modification to, any such agreement, to permit such person to submit a Company Acquisition Proposal to return or destroy (as Proposal; provided in that the terms of such confidentiality agreement) all confidential information concerning foregoing shall not restrict the Company from permitting a Person to orally request the waiver of a “standstill” or any similar obligation or from granting such a waiver, in each case, to the extent the Company’s board of its Subsidiaries and promptly terminate all physical and electronic data access previously granted directors determines in good faith, after consultation with outside legal counsel, that the failure to take such Personaction would reasonably be expected to constitute a breach of the directors’ fiduciary duties under applicable Law.
Appears in 4 contracts
Sources: Voting Agreement (Newhouse Broadcasting Corp), Merger Agreement (Scripps Networks Interactive, Inc.), Voting Agreement (Discovery Communications, Inc.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by set forth in this Section 5.026.1, neither it nor any until the Effective Time, each of its Merger Partner, Public Company and their respective Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallshall not, and it each of Merger Partner and Public Company shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s their respective directors, officers, members, employees, investment bankersagents, attorneys, accountants consultants, contractors, accountants, financial advisors and other advisors, agents and authorized representatives are hereinafter referred to as its (“Representatives”) not to, directly or indirectly:
(i) initiate, solicit, seek or initiate or knowingly take any action to facilitate or encourage or otherwise knowingly facilitate any offers, inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company Acquisition Proposal, or engage, 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 could reasonably be expected to lead to, an Acquisition Proposal;
(ii) engage enter into, continue or otherwise participate or engage in any discussions or negotiations relating regarding any Acquisition Proposal, or furnish to any person any non-public information or afford any person other than Public Company Acquisition Proposal or Merger Partner, as applicable, access to such party’s property, books or records (except pursuant to a request by a Governmental Entity) in connection with any inquiryoffers, inquiries or the making of any proposal or offer that would constitutes, or could reasonably be expected to lead to a Company to, any Acquisition Proposal; or;
(iii) provide take any information or data action to make the provisions of any takeover statute inapplicable to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company transactions contemplated by an Acquisition Proposal; or
(iv) otherwise knowingly facilitate publicly propose to do any effort of the foregoing described in clauses (i) through (iii). Notwithstanding the foregoing or attempt anything to make a the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), prior to the Specified Time, each of Public Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore Merger Partner may (A) furnish non-public information with respect to Public Company and its Subsidiaries or Merger Partner and its Subsidiaries, as the case may be, to any Qualified Person (and the Representatives of such Qualified Person), or (B) engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal; provided that (x) either Merger Partner or Public Company (as applicable) receives from the Qualified Person an executed confidentiality agreement on the terms not less restrictive than exist in the Confidentiality Agreement and continuing additional provisions that expressly permit such party to comply with this terms of this Section 6.1 (a copy of which shall be provided to the other party), (y) the party seeking to make use of this proviso has not otherwise materially breached this Section 6.1 with respect to such Acquisition Proposal or the person making such Acquisition Proposal, and (z) the Merger Partner Board or proposal Public Company Board (as applicable) has determined that taking such actions would reasonably be expected required to lead to prevent a Company Acquisition Proposalbreach of its fiduciary duties under applicable law. The Company will promptly inform the Persons referred to in the preceding sentence It is understood and agreed that any violation of the obligations undertaken restrictions in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return 6.1 (or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the action that, if taken by Public Company or Merger Partner, as applicable, would constitute such a violation) by any Representatives of its Subsidiaries and promptly terminate all physical and electronic data access previously granted Public Company or Merger Partner shall be deemed to such Personbe a breach of this Section 6.1 by Public Company or Merger Partner, as applicable.
Appears in 3 contracts
Sources: Merger Agreement (SRAX, Inc.), Merger Agreement (Amergent Hospitality Group, Inc), Merger Agreement (Chanticleer Holdings, Inc.)
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.02, that neither it nor any of its Subsidiaries nor any of its officers or its Subsidiaries’ officers, directors and employees shall, and that it shall instruct and use reasonable best efforts to cause its employees not to, and shall instruct its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Personthe Company’s directors, officers, employees, investment bankers, attorneys, accountants and other advisorsadvisors or representatives, agents and representatives are hereinafter referred to as its collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company Acquisition Proposal;Proposal (as defined below); or
(ii) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or provide any non-public information or data to any Company Acquisition Proposal or Person relating to, any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shallNotwithstanding anything in the foregoing to the contrary, and prior to the time, but not after, the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives toRequisite Vote is obtained, immediately cease and the Company may (A) provide or cause to be terminated provided information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than 50% of the assets (on a consolidated basis) or more than 50% of the total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information, an executed confidentiality agreement on terms at least as protective for the benefit of the Company as those contained in the Confidentiality Agreements (as defined in Section 6.7) and promptly discloses (and, if applicable, provides copies of) any such information to Parent to the extent not previously provided to Parent; (B) engage in discussions and or negotiations with any Person conducted heretofore who has made such an unsolicited bona fide written Acquisition Proposal; or (C) after having complied with respect the requirements of this Section 6.2, approve, adopt, recommend, or otherwise declare advisable or propose to any Company approve, adopt, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, or proposal that would reasonably be expected if and only to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the preceding sentence board of directors of the obligations undertaken Company determines in this Section 5.02. The good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law; (y) in each such case referred to in clause (A) or (B), if the board of directors of the Company will promptly request from each Person that has executed a confidentiality agreement determined in connection good faith based on the information then available and after consultation with its consideration of making a Company financial advisor that such Acquisition Proposal to return or destroy either constitutes a Superior Proposal (as provided defined below) or is reasonably likely to result in a Superior Proposal; and (z) in the terms case referred to in clause (C) above, the board of such confidentiality agreement) all confidential information concerning directors of the Company or any of determines in good faith (after consultation with its Subsidiaries financial advisor and promptly terminate all physical and electronic data access previously granted to outside legal counsel) that such PersonAcquisition Proposal is a Superior Proposal.
Appears in 3 contracts
Sources: Merger Agreement (Visicu Inc), Merger Agreement (Sterling Venture Partners L P), Merger Agreement (Cardinal Health Partners Lp)
No Solicitation or Negotiation. The Company agrees thatDuring the Pre-Closing Period, except as expressly permitted by this Section 5.025.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallIris shall not, and it Iris shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers and employees not to, and shall cause its and their respective investment bankers, attorneys, accountants and other advisors, agents and or representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitinduce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company an Iris Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any Company way with any Person regarding any Iris Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company an Iris Acquisition Proposal; or;
(iii) provide any non-public information or data concerning Iris or any of its Subsidiaries to any Person in connection with any Company Iris Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company an Iris Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating an Iris Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to an Iris Acquisition Proposal;
(v) adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, an Iris Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(vi) take any action or exempt any Person (other than Meadow and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or Iris’s organizational or other governing documents; or
(ivvii) otherwise knowingly facilitate publicly propose, resolve or agree to do any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company Iris shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Iris Acquisition Proposal, or inquiry, proposal or offer that would could reasonably be expected to lead to a Company an Iris Acquisition Proposal and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Iris Acquisition Proposal. The Company will promptly inform As soon as reasonably practicable after the Persons referred date of this Agreement, ▇▇▇▇ shall deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company an Iris Acquisition Proposal within the last 12 months, to the effect that ▇▇▇▇ is ending all discussions and negotiations with such Person with respect to any such ▇▇▇▇ Acquisition Proposal effective as of the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted furnished to such Person. ▇▇▇▇ shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between Iris and any Person (other than Meadow), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such Person to submit an Iris Acquisition Proposal, unless in any such case the Iris Board shall have determined, in good faith, after consultation with outside legal counsel, that such actions would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Infinity Pharmaceuticals, Inc.), Merger Agreement (Infinity Pharmaceuticals, Inc.), Agreement and Plan of Merger (MEI Pharma, Inc.)
No Solicitation or Negotiation. The Company agrees thatStockholder shall not, except as expressly permitted by this Section 5.02, neither it nor and shall not authorize or permit any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not Representatives to, directly or indirectly:
, (ia) solicit, initiate, solicitpropose or knowingly induce the making, submission or announcement of, or knowingly encourage encourage, facilitate or otherwise knowingly facilitate any inquiries or the making of assist, any proposal or offer with respect to, that constitutesconstitutes or could reasonably be expected to lead to, an Acquisition Proposal; (b) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, in any such case with the intent to knowingly induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate, any proposal or offer with respect to, that constitutes or would reasonably be expected to lead to, any Company to an Acquisition Proposal;
; (iic) participate or engage or otherwise participate in any discussions or negotiations relating with any Person with respect to any Company an Acquisition Proposal (or any inquiryinquiries, proposal proposals or offer offers that would reasonably be expected to lead to a Company an Acquisition Proposal); (d) approve, endorse or recommend an Acquisition Proposal; or
or (iiie) provide approve, recommend or enter into, or propose to approve, recommend to enter into, any information or data to any Person in connection with any Company Alternative Acquisition Proposal or any inquiryAgreement. Following the execution of this Agreement, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, the Stockholder shall immediately cease and the Company shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to, to immediately cease and cause to be terminated any discussions and discussions, communications or negotiations with any Person conducted heretofore (other than the Parties and their respective Representatives) in connection with respect to any Company an Acquisition Proposal, Proposal (or proposal proposals or offers that would could reasonably be expected to lead to a Company an Acquisition Proposal. The Company will promptly inform the Persons referred to ) by such Person, in the preceding sentence each case that exists as of the obligations undertaken date of this Agreement. Notwithstanding anything to the contrary in this Section 5.02. The Company will promptly request from each Person 7.1, the Stockholder may engage in such activities solely to the extent that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any is permitted to engage in such activities pursuant to Section 5.3(b) of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personthe Merger Agreement.
Appears in 3 contracts
Sources: Voting and Support Agreement (Blackstone Holdings III L.P.), Voting and Support Agreement (Blackstone Holdings III L.P.), Voting and Support Agreement (Blackstone Holdings III L.P.)
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company an Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company an Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company an Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.026.2. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company an Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (At&t Inc.), Merger Agreement (Time Warner Inc.)
No Solicitation or Negotiation. The Company agrees thatFrom the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement, except as expressly permitted by this Section 5.02the termination of the Merger Agreement pursuant to Article VII thereof and the consummation of the Closing, neither it nor any of the Stockholder will not, will cause its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallofficers (as applicable) not to, and it shall instruct and use reasonable best efforts to cause will not authorize, direct or permit its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not Representatives to, directly or indirectly:
: (ia) initiate, solicit, or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal proposal, inquiry or offer that constituteswould constitute, or would reasonably be expected to lead to, any Company an Acquisition Proposal;
, (iib) engage in, enter into, continue or otherwise participate in any discussions or negotiations relating with respect to any Company Acquisition Proposal or any inquiryproposal, proposal inquiry or offer that would constitute, or would reasonably be expected to lead to a Company to, an Acquisition Proposal; or
, (iiic) provide any non-public information or data afford access to the assets, books or records of the Company or the Company Subsidiaries, in each case, to any Person (other than Parent, Merger Sub, or any designees of Parent or Merger Sub) in connection with or for the purpose of knowingly encouraging or facilitating any Company Acquisition Proposal or any inquiryproposal, proposal inquiry or offer that would constitute, or would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company an Acquisition Proposal, (d) in connection with any proposal, inquiry or proposal offer that would constitute, or would reasonably be expected to lead to a Company to, an Acquisition Proposal. The Company will promptly inform the Persons referred , grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement, or (e) enter into any letter of intent, Contract, commitment, or agreement in the preceding sentence principle with respect to any proposal, inquiry or offer that would constitute, or would reasonably be expected to lead to, an Acquisition Proposal or (e) resolve, propose or agree to do any of the obligations undertaken foregoing. Notwithstanding the foregoing, the Stockholder may participate in this discussions and negotiations with any Third Party with whom the Company Board is engaging in negotiations or discussions pursuant to and in compliance with Section 5.02. The Company will promptly request from each Person that has executed 5.3 of the Merger Agreement, solely for the purpose of entering into a confidentiality voting agreement in connection with its consideration of making a Company Acquisition Proposal such Third Party on substantially similar terms to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personhereof.
Appears in 3 contracts
Sources: Voting and Support Agreement (Mallard Holdco, LLC), Voting and Support Agreement (Brown Forman Corp), Voting and Support Agreement (Duckhorn Portfolio, Inc.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by set forth in this Section 5.026.1, neither the Company shall not, nor shall it nor authorize or permit any Subsidiary of its Subsidiaries nor it or any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s their directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and other advisorsrepresentatives, agents and representatives are hereinafter referred to as its collectively, “Representatives”) not to, to directly or indirectly:
(i) solicit, initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal (as defined below in Section 6.1(f)), including without limitation amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Acquisition Proposal;Common Stock; or
(ii) engage enter into, continue or otherwise participate in any discussions or negotiations relating regarding, furnish to any Company person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company any Acquisition Proposal; or
. Notwithstanding the foregoing and subsection (iiie) provide below, prior to the adoption of this Agreement at the Company Stockholders’ Meeting (the “Specified Time”), the Company may, to the extent required by the fiduciary obligations of the Company Board or any information special committee thereof, as determined in good faith by the Company Board or data any such special committee, after consultation with its outside counsel, in response to any Person in connection with any Company a bona fide, unsolicited Acquisition Proposal made or received after the date of this Agreement (including, without limitation, an Acquisition Proposal received from a person with whom the Company had discussions or to whom the Company furnished information prior to the date hereof) that the Company Board or any inquiry, proposal or offer that would special committee determines in good faith after consultation with its outside counsel and its financial advisor is reasonably be expected likely to lead to a Superior Proposal (as defined below in Section 6.1(f)), in each case that did not follow a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), (x) furnish information with respect to the Company to the person making such Acquisition Proposal; or
Proposal and its Representatives pursuant to a customary confidentiality agreement with terms no less favorable to the Company than the Confidentiality Agreement (ivas defined in Section 9.3) otherwise knowingly facilitate and (y) participate in discussions or negotiations with such person and its Representatives regarding any effort or attempt to make a Company Acquisition Proposal. The Company shallWithout limiting the foregoing, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated it is agreed that any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence violation of the obligations undertaken restrictions set forth in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration 6.1(a) by any Representative of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any Subsidiary of its Subsidiaries and promptly terminate all physical and electronic data access previously granted it, whether or not such person is purporting to such Personact on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 6.1(a) by the Company.
Appears in 3 contracts
Sources: Merger Agreement (Infospace Inc), Merger Agreement (Infospace Inc), Merger Agreement (Epresence Inc)
No Solicitation or Negotiation. The Company agrees thatDuring the Pre-Closing Period, except as expressly permitted by this Section 5.025.3, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallMeadow shall not, and it Meadow shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officersofficers and employees not to, employees, investment bankers, attorneys, accountants and other advisors, agents shall cause its and representatives are hereinafter referred to as its “Representatives”) their respective Representatives not to, directly or indirectly:
(i) solicit, initiate, solicitinduce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company a Meadow Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any Company way with any Person regarding any Meadow Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Meadow Acquisition Proposal; or;
(iii) provide any non-public information or data concerning Meadow or any of its Subsidiaries to any Person in connection with any Company Meadow Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Meadow Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Meadow Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to a Meadow Acquisition Proposal;
(v) adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Meadow Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(vi) take any action or exempt any Person (other than Iris and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Meadow’s organizational or other governing documents; or
(ivvii) otherwise knowingly facilitate publicly propose, resolve or agree to do any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company Meadow shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Meadow Acquisition Proposal, or inquiry, proposal or offer that would could reasonably be expected to lead to a Company Meadow Acquisition Proposal and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Meadow Acquisition Proposal. The Company will promptly inform As soon as reasonably practicable after the Persons referred date of this Agreement, ▇▇▇▇▇▇ shall deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Meadow Acquisition Proposal within the last 12 months, to the effect that ▇▇▇▇▇▇ is ending all discussions and negotiations with such Person with respect to any such Meadow Acquisition Proposal effective as of the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted furnished to such Person. ▇▇▇▇▇▇ shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between Meadow and any Person (other than Iris), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such Person to submit a Meadow Acquisition Proposal, unless in any such case the Meadow Board shall have determined, in good faith, after consultation with outside legal counsel, that such actions would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Infinity Pharmaceuticals, Inc.), Merger Agreement (Infinity Pharmaceuticals, Inc.), Agreement and Plan of Merger (MEI Pharma, Inc.)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 8.1, and except as expressly permitted by otherwise specifically provided for in this Section 5.025.3, neither it nor any the Company shall not, shall cause each of the Company Subsidiaries and its Subsidiaries nor any of its or its Subsidiaries’ and their respective officers, directors and employees shallnot to, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and their respective other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
(i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries inquiry regarding, or the making submission of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company Acquisition a Competing Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating regarding, or furnish to any Company Acquisition Person any information or data with respect to, or knowingly cooperate in any way with any Person (whether or not such Person is making a Competing Proposal) with respect to any Competing Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Competing Proposal; or
(iii) provide take any information action to exempt any Person (other than Parent and the Parent Subsidiaries) from the restrictions on “business combinations” or data any similar provision contained in any applicable Takeover Statute or the Company Governing Documents. The Company shall, shall cause each of the Company Subsidiaries and its and their respective officers, directors and employees to, and shall use its reasonable best efforts to cause its and their respective other Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to any Person in connection with any Company Acquisition Competing Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any Person that has executed a confidentiality or non-disclosure agreement in connection with any such Competing Proposal or potential Competing Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such Person or its Representatives in accordance with the terms of such confidentiality or non-disclosure agreement. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiaries and its and their respective Representatives may in response to a bona fide, written Competing Proposal (A) seek to clarify and understand the terms and conditions of any such Competing Proposal (or amended proposal) solely to determine whether such Competing Proposal constitutes or would reasonably be expected to lead to a Company Acquisition Proposal; or
Superior Proposal and (ivB) otherwise knowingly facilitate any effort or attempt to make inform a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement made any such Competing Proposal of the provisions of this Section 5.3, in each case, so long as the Company, the Company Subsidiaries and such Representatives otherwise comply with this Section 5.3 in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Persontherewith.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Allergan PLC), Merger Agreement (Kythera Biopharmaceuticals Inc), Merger Agreement (Allergan PLC)
No Solicitation or Negotiation. The Company agrees that(i) From and after the date of this Agreement, except as expressly otherwise permitted by this Section 5.02pursuant to the Merger Agreement, neither each Stockholder agrees that it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallshall not, and that it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
: (iA) initiate, solicit, knowingly encourage initiate or otherwise knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company an Acquisition Proposal;
, (iiB) engage in, continue or otherwise participate in any discussions (except to notify a Person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 5(a)) or negotiations relating regarding, or which would reasonably be expected to lead to, or furnish to any Company other Person any information in connection with or for the purpose of soliciting, knowingly encouraging or facilitating, an Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company an Acquisition Proposal; or
, or (iiiC) provide adopt, approve or enter into any information or data Contract with respect to any Person in connection with any Company an Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company an Acquisition Proposal; or.
(ivii) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company Each Stockholder and, if such Stockholder is an Entity, its directors, officers and employees shall, and the Company such Stockholder shall cause its Subsidiaries and use its reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any and all existing discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposalto, or proposal that which would reasonably be expected to lead to a Company to, any Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 3 contracts
Sources: Tender and Support Agreement (Oyster Point Pharma, Inc.), Tender and Support Agreement (Viatris Inc), Tender and Support Agreement (New Enterprise Associates 14, L.P.)
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by from the Go Shop Period End Date until the Effective Time or, if earlier, the termination of this Section 5.02Agreement in accordance with Article VIII, neither it nor any of its Subsidiaries nor any of the officers and directors of it or any of its or its Subsidiaries’ officers, directors and employees Subsidiaries shall, and that it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) respective Representatives not to, directly or indirectly:
(iA) initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;; or
(iiB) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or provide any non-public information to any Company Acquisition Proposal or Person relating to, any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(ivC) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Notwithstanding the foregoing, the Company shallmay take and continue to take any of the actions described in Section 6.2(a) and, subject to Section 6.2(c), from and after the Go-Shop Period End Date with respect to any Solicited Person that, prior to the Go-Shop Period End Date, has made a bona fide Acquisition Proposal that the Independent Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 6.2(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Independent Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal (a “Terminated Acquisition Proposal”). After the Go-Shop Period End Date, other than with respect to Persons who at the Go-Shop Period End Date are Excluded Parties, and at any subsequent time with respect to any Person (including a formerly Excluded Party) that has made an Acquisition Proposal that becomes a Terminated Acquisition Proposal, the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations solicitation, encouragement, discussion or negotiation with any such Person conducted heretofore theretofore by the Company, its Subsidiaries or any of their respective Representatives with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal and shall use reasonable best efforts to require such Person to promptly return or destroy (as provided in the terms of such confidentiality agreement) all any confidential information concerning previously furnished by the Company or Company, any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personor any of their respective Representatives.
Appears in 2 contracts
Sources: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
No Solicitation or Negotiation. The Company agrees Each of Medicis and Ascent shall ensure that, except as expressly permitted by this Section 5.02during the Pre-Closing Period, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
, shall: (ia) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate induce the making, submission or announcement of any inquiries or the making of any proposal or offer related to an Acquisition Transaction or take any action that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal; or
any such inquiries or the making of any such proposal or offer, (iiib) provide furnish any information or data regarding Ascent to any Person in connection with any Company or in response to an Acquisition Proposal Transaction or any inquiry, proposal an inquiry or offer indication of interest that would could reasonably be expected to lead to an Acquisition Transaction, (c) engage in discussions or negotiations with any Person with respect to any Acquisition Transaction, (d) approve, endorse or recommend any Acquisition Transaction, (e) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, or (f) enter into any letter of intent or similar document or any Contract having a Company primary purpose of effectuating, or which would effect, any Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition ProposalTransaction. The Company shall, Each of Medicis and the Company Ascent shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any Contract or discussions and negotiations with any Person conducted heretofore (other than BioMarin Acquisition) related to an Acquisition Transaction. In addition, if during the Pre-Closing Period Medicis or Ascent receives an offer or proposal (formal, informal, oral, written or otherwise) relating to, or any inquiry or contact from any Person with respect to to, an Acquisition Transaction, such party shall immediately notify BioMarin thereof and provide BioMarin with details thereof, including the identity of the Person or Persons making such offer or proposal, and will keep BioMarin informed on a current basis of the status and details of any Company Acquisition Proposal, such offer or proposal that would reasonably be expected and any modification to lead to a Company Acquisition Proposalthe terms thereof. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company Medicis and Ascent will promptly request from each Person that has executed executed, within 12 months prior to the date of this Agreement, a confidentiality confidentiality, standstill or similar agreement in connection with its consideration of making a Company possible Acquisition Proposal Transaction to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted heretofore furnished to such PersonPerson by or on behalf of Medicis or Ascent.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Biomarin Pharmaceutical Inc), Asset Purchase Agreement (Medicis Pharmaceutical Corp)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article VII, except as expressly permitted by this Section 5.025.2, neither it the Company nor any of its Subsidiaries nor any of shall, and the Company shall cause its or and its Subsidiaries’ officersdirectors, directors officers and employees shallnot to, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ their respective investment bankers, attorneys, accountants and other advisors, agents and or representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any Company Acquisition Proposal or way not permitted by this Section 5.2 with any inquiry, Person regarding any proposal or offer that the consummation of which would reasonably be expected to lead to constitute a Company Acquisition Proposal; or;
(iii) provide any information or data concerning the Company or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that the consummation of which would reasonably be expected to lead to constitute a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate approve or recommend, make any effort public statement approving or attempt recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to make lead to, a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. The Company will promptly inform the Persons referred shall not grant any waiver of, or agree to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each any amendment or modification to, any “standstill” agreement, to permit such Person that has executed a confidentiality agreement in connection with its consideration of making to submit a Company Acquisition Proposal to return or destroy (as Proposal; provided in that the terms of such confidentiality agreement) all confidential information concerning foregoing shall not restrict the Company from permitting a Person to orally and non-publicly request the waiver of a “standstill” or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted similar obligation or from granting such a waiver, in each case, to the extent the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such Personaction would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Twilio Inc), Merger Agreement (SendGrid, Inc.)
No Solicitation or Negotiation. The Company agrees thatDuring the Pre-Closing Period, except as expressly permitted by this Section 5.025.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallthe Company shall not, and it the Company shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers and employees not to, and shall cause its and their respective investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitinduce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL) any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any way with any Person regarding any Company Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal; or;
(iii) provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person in connection with with, or for the purpose of soliciting, initiating, inducing, encouraging or facilitating, any Company Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to, or that could reasonably be expected to lead to, a Company Acquisition Proposal;
(v) adopt, approve, declare advisable or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(vi) take any action or exempt any Person (other than Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Company’s organizational or other governing documents; or
(ivvii) otherwise knowingly facilitate resolve, publicly propose or agree to do any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. The Company will promptly inform shall (i) as soon as reasonably practicable after the Persons referred date of this Agreement (and in all events no later than three Business Days), deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Acquisition Proposal within the last 12 months, to the effect that the Company is ending all discussions and negotiations with such Person with respect to any such Company Acquisition Proposal effective as of the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning previously furnished to such Person by or on behalf of the Company relating to any Company Acquisition Proposal (and the Company shall use its reasonable best efforts to have such information returned or any of its Subsidiaries destroyed) and promptly immediately terminate all physical and electronic data room access previously granted to any such party or its Representatives and (ii) commencing on the date of this Agreement, prohibit any third party (other than Parent and its Representatives) from having access to any physical or electronic data room relating to any possible Company Acquisition Proposal. The Company shall use its reasonable best efforts to enforce the terms of each confidentiality agreement with any such Person. The Company shall not grant any waiver of, or agree to any amendment or modification to, or release any such Person from, any such agreement, to permit such Person to submit a Company Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Standard Biotools Inc.), Merger Agreement (Standard Biotools Inc.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.025.2, neither it nor any of the Company shall not, and shall cause its Subsidiaries nor any of its or and its Subsidiaries’ officersdirectors, directors officers and employees shallnot to, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Person’s directorscollectively, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company an Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to with any Company Acquisition Proposal or Person regarding any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or;
(iii) provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would could reasonably be expected to lead to a Company an Acquisition Proposal. The Company will promptly inform the Persons individuals and entities referred to in the preceding sentence hereof of the obligations undertaken in this Section 5.025.2. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company an Acquisition Proposal to promptly return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 2 contracts
Sources: Merger Agreement (Straight Path Communications Inc.), Merger Agreement (Straight Path Communications Inc.)
No Solicitation or Negotiation. The Company agrees thatEach Stockholder shall not, except as expressly permitted by this Section 5.02, neither it nor and shall not authorize or permit any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not Representatives to, directly or indirectly:
, (ia) solicit, initiate, solicitpropose or knowingly induce the making, submission or announcement of, or knowingly encourage encourage, facilitate or otherwise knowingly facilitate any inquiries or the making of assist, any proposal or offer with respect to, that constitutesconstitutes or could reasonably be expected to lead to, an Acquisition Proposal; (b) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, in any such case with the intent to knowingly induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate, any proposal or offer with respect to, that constitutes or would reasonably be expected to lead to, any Company to an Acquisition Proposal;
; (iic) participate or engage or otherwise participate in any discussions or negotiations relating with any Person with respect to any Company an Acquisition Proposal (or any inquiryinquiries, proposal proposals or offer offers that would reasonably be expected to lead to a Company an Acquisition Proposal); (d) approve, endorse or recommend an Acquisition Proposal; or
or (iiie) provide approve, recommend or enter into, or propose to approve, recommend to enter into, any information or data to any Person in connection with any Company Alternative Acquisition Proposal or any inquiryAgreement. Following the execution of this Agreement, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, each Stockholder shall immediately cease and the Company shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to, to immediately cease and cause to be terminated any discussions and discussions, communications or negotiations with any Person conducted heretofore (other than the Parties and their respective Representatives) in connection with respect to any Company an Acquisition Proposal, Proposal (or proposal proposals or offers that would could reasonably be expected to lead to a Company an Acquisition Proposal. The Company will promptly inform the Persons referred to ) by such Person, in the preceding sentence each case that exists as of the obligations undertaken date of this Agreement. Notwithstanding anything to the contrary in this Section 5.02. The Company will promptly request from 7.1, each Person Stockholder may engage in such activities solely to the extent that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any is permitted to engage in such activities pursuant to Section 5.3(b) of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personthe Merger Agreement.
Appears in 2 contracts
Sources: Voting and Support Agreement (Blackstone Holdings III L.P.), Voting and Support Agreement (Vista Equity Partners Fund VI, L.P.)
No Solicitation or Negotiation. The Company agrees that(i) During the Pre-Closing Period, except as expressly permitted by this Section 5.025.3, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors Parent and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankersdirectors and officers shall not, attorneys, accountants and other advisors, agents shall not direct any of its and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not their respective Representatives to, directly or indirectly:
(iA) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company a Parent Acquisition Proposal;
(iiB) engage or otherwise participate in any discussions or negotiations relating or cooperate in any way with any Person regarding any proposal or offer the consummation of which would constitute a Parent Acquisition Proposal;
(C) provide any information or data concerning Parent or any of its Subsidiaries to any Company Person in connection with any proposal the consummation of which would constitute a Parent Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Parent Acquisition Proposal;
(D) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to a Parent Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Parent Acquisition Proposal;
(E) adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that would constitutes, or could reasonably be expected to lead to to, a Parent Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any Person (other than the Company Acquisition Proposaland its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or Parent’s organizational or other governing documents; or
(iiiF) provide resolve, publicly propose or agree to do any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; orof the foregoing.
(ivii) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company Parent shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Parent Acquisition Proposal, or proposal that would could reasonably be expected to lead to a Company Parent Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Parent Acquisition Proposal. The Company will promptly inform As soon as reasonably practicable after the Persons referred date of this Agreement, Parent shall deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Parent Acquisition Proposal within the last 30 days, to the effect that Parent is ending all discussions and negotiations with such Person with respect to any Parent Acquisition Proposal, effective on the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted furnished to such Person. Parent shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between Parent and any Person (other than the Company), and, subject to Section 5.3(b), shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such Person to submit a Parent Acquisition Proposal.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ACELYRIN, Inc.), Merger Agreement (Alumis Inc.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.2(b), neither it nor any of the Company and its Subsidiaries nor any of its or its Subsidiaries’ officers, and their respective officers and directors and employees shall, and it the Company shall instruct cause its Subsidiaries to and the Company shall use its reasonable best efforts to cause its Representatives to (and its Subsidiaries’ investment bankersany violation of any provision of this Section 6.2 by the Company’s Subsidiaries or Representatives (or action or omission by them that would be a breach thereof if taken or omitted to be taken by the Company) shall be deemed to be a breach thereof by the Company), attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) immediately cease any activities, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person, (ii) use reasonable efforts to cause the prompt return or destruction of all material confidential information previously furnished with respect to any Acquisition Proposal or potential Acquisition Proposal to any Person since January 1, 2017, (iii) not terminate, amend, modify, or intentionally release or intentionally waive any provision of any confidentiality or standstill agreement to which it or any of its Affiliates or Representatives is a party with respect to any Acquisition Proposal or potential Acquisition Proposal, and shall enforce all such provisions of any such agreement, to the extent such provisions are still effective, which shall include seeking any injunctive relief available to enforce such agreement (provided, that the Company shall be permitted to grant waivers of, and not enforce, any standstill agreement, but solely to the extent that the Board of Directors of the Company has determined in good faith, after consultation with its outside counsel, that failure to take such action (A) would prohibit the counterparty from making an unsolicited Acquisition Proposal to the Company in compliance with this Section 6.2 and (B) would be inconsistent with the Company’s directors’ statutory or fiduciary duties under applicable Law) and (iv) from the execution of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, not (1) initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate any inquiries or the making or announcement of any proposal or offer that constitutes, constitutes an Acquisition Proposal or would is reasonably be expected likely to lead to, to any Company Acquisition Proposal;
, (ii2) engage in or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal regarding, or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any non-public information or data concerning the Company or its Subsidiaries to any Person relating to or for purposes of facilitating, any Acquisition Proposal, (3) enter into any agreement or agreement in connection principle with respect to any Company Acquisition Proposal or any inquiry(other than a confidentiality agreement referred to in Section 6.2(b)), proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv4) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts Proposal or (5) agree to cause its Representatives to, immediately cease and cause to be terminated do any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personforegoing.
Appears in 2 contracts
Sources: Bid Conduct Agreement (ARRIS International PLC), Bid Conduct Agreement (CommScope Holding Company, Inc.)
No Solicitation or Negotiation. The Each of the Company and Parent agrees that, except as expressly permitted by this Section 5.02, that neither it nor any of its respective Subsidiaries nor any of its or its respective Subsidiaries’ officers, officers and directors and employees shallwill, and it shall instruct each of the Company and Parent will not authorize its and its respective Subsidiaries’ Representatives to, and will use its reasonable best efforts to instruct and cause its and its respective Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate or encourage any inquiries or the making of any proposal or offer that constitutes, or would is reasonably be expected to lead toconstitute, any Company an Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or provide any non-public information or data to any Person who has made, or proposes to make, an Acquisition Proposal;
(iii) afford access to the properties, books or records of the Company Acquisition Proposal or Parent, as applicable, or any inquiryof their respective Subsidiaries to any Person that has made, proposal or offer that would reasonably be expected to lead the Knowledge of the Company or to a Company the Knowledge of Parent, as applicable, is considering making, any Acquisition Proposal;
(iv) except as permitted under Section 7.2(b)(ii), enter into any letter of intent or agreement in principle or any agreement or understanding providing for any Acquisition Proposal; or
(iiiv) except as permitted under Section 7.2(b)(ii), propose publicly or agree to any of the foregoing relating to an Acquisition Proposal. Notwithstanding the foregoing, prior to (but not after) the time (A) in the case of the Company, this Agreement is approved by the Company’s stockholders pursuant to the Company Requisite Vote or (B) in the case of Parent, the Share Issuance is approved by Parent’s stockholders pursuant to the Parent Requisite Vote, as applicable, the Company’s Board of Directors or Parent’s Board of Directors, as applicable, may (1) provide information (including to potential debt or equity financing sources and potential asset purchasers and their respective potential debt and equity financing sources) in response to a request by a Person or Persons who has or have made a bona fide written Acquisition Proposal that was not initiated, solicited, facilitated or encouraged in violation of this Section 7.2 (a) if the Company or Parent, as applicable, receives from the Person or Persons so requesting the information an executed confidentiality agreement no more favorable in any material respect to such Person or Persons than the Parent Confidentiality Agreement is to Parent, provided that all such information is concurrently furnished to Parent and to the Asset Purchaser, or data to the Company, as applicable, to the extent not previously furnished, in the same form provided to such Person or Persons (and/or its or their respective potential debt or equity financing sources and potential asset purchasers and their respective potential debt and equity financing sources); and/or (2) engage in discussions or negotiations with any Person in connection with any Company or Persons who has or have made a bona fide written Acquisition Proposal that was not initiated, solicited, facilitated or any inquiryencouraged in violation of this Section 7.2(a), proposal if, in each case, the Board of Directors of the Company or offer Parent, as applicable, determines in good faith (after consultation with outside legal counsel and financial advisors) that failure to take this action would be inconsistent with its fiduciary duties under applicable Law; and in the case referred to in clause (2) above, if the Board of Directors of the Company or Parent, as applicable, determines in good faith that the Acquisition Proposal either constitutes a Superior Proposal or is reasonably be expected likely to lead to a Company Acquisition Superior Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Black Hills Corp /Sd/)
No Solicitation or Negotiation. The Company Bemis agrees that, except as expressly permitted by this Section 5.025.3, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallshall not, and it shall instruct cause the Bemis Subsidiaries and each of its and the Bemis Subsidiaries’ respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its and its the Bemis Subsidiaries’ respective third-party consultants, financial advisors, accountants, legal counsel, investment bankers, attorneys, accountants bankers and other advisorsthird party agents, agents advisors and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Bemis Competing Proposal;
(ii) engage or otherwise participate in any discussions or negotiations with any third party relating to any Company Acquisition Bemis Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Bemis Competing Proposal; or;
(iii) provide any non-public information or data to any Person in connection with with, related to or in contemplation of any Company Acquisition Bemis Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Bemis Competing Proposal;
(iv) amend, grant any waiver or release under or fail to enforce any standstill or similar agreement with respect to any class of equity securities of Bemis or any of the Bemis Subsidiaries, unless the Bemis Board of Directors determines after considering advice from outside legal counsel that the failure to amend, waive, release or fail to enforce such provision would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law;
(v) approve any Person becoming an “interested shareholder” under Section 351.459 of the Missouri Code;
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement relating to a Bemis Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Bemis Competing Proposal (other than a Bemis Competing Proposal NDA); or
(ivvii) otherwise knowingly facilitate (A) fail to make, withdraw or modify in a manner adverse to Amcor, or publicly propose to fail to make, withdraw or modify in a manner adverse to Amcor, the Bemis Board Recommendation, (B) fail to include the Bemis Board Recommendation in the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve a Bemis Competing Proposal, or (D) fail to reaffirm the Bemis Board Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Bemis Competing Proposal or in connection with such action by the close of business on the 10th Business Day after the commencement of such Bemis Competing Proposal under Rule 14e-2(a) (any effort of the foregoing in this Section 5.3(a)(vii), a “Bemis Adverse Recommendation Change”). Nothing contained herein shall prevent the Bemis Board of Directors from (A) complying with Rule 14e-2(a) under the Exchange Act with regard to a Bemis Competing Proposal or attempt (B) issuing “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, that any such disclosure or statement that constitutes or contains a Bemis Adverse Recommendation Change shall be subject to make the provisions of this Section 5.3(a) (it being understood, for the avoidance of doubt, that a Company Acquisition Proposaldisclosure that constitutes only a customary “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not in and of itself be deemed to be a Bemis Adverse Recommendation Change). The Company Bemis shall, and the Company Bemis shall cause its the Bemis Subsidiaries and each of its and the Bemis Subsidiaries’ respective directors, officers and employees to, and shall use its reasonable best efforts to cause its Representatives and the Bemis Subsidiaries’ respective third-party consultants, financial advisors, accountants, legal counsel, investment bankers and other third party agents, advisors and representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Bemis Competing Proposal, or proposal or offer that would reasonably be expected to lead to a Company Acquisition Bemis Competing Proposal. The Company Bemis will promptly inform (and in each case within 24 hours from the Persons referred to in the preceding sentence date of the obligations undertaken in this Section 5.02. The Company will promptly Agreement) request from each Person (and such Person’s Representatives) that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Bemis Competing Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company Bemis or any Bemis Subsidiary and shall promptly (and in each case within 24 hours from the date of its Subsidiaries and promptly this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 2 contracts
Sources: Transaction Agreement (Bemis Co Inc), Transaction Agreement
No Solicitation or Negotiation. The Company agrees thatAt all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VII and the Effective Time, except as expressly permitted by this Section 5.025.2, neither it nor the Company shall not, and shall cause its Subsidiaries and any of the directors, officers, employees and Affiliates of it or its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallnot to, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Person’s such directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisorsadvisors or representatives, agents and representatives are hereinafter referred to as its collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, propose, initiate or knowingly encourage encourage, or otherwise take any other action to knowingly facilitate facilitate, any inquiries or the making of any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, any Company to an Acquisition Proposal;
(ii) agree to participate in or engage or otherwise participate in any discussions or negotiations relating with, furnish or disclose any non-public information or data concerning the Company or any of its Subsidiaries to, or respond to any Company Acquisition Proposal inquiry made by, any Person that has made or any inquiry, indicated an intention to make a proposal that constitutes or offer that would reasonably be expected to lead to a an Acquisition Proposal (other than state that the terms of this provision prohibit such discussions) or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel of the Company or any of its Subsidiaries (other than Parent, Merger Sub or any designees of Parent or Merger Sub) in connection with any proposal that constitutes or would reasonably be expected to lead to an Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company an Acquisition Proposal. The Company will promptly inform the Persons individuals and entities referred to in the preceding sentence hereof of the obligations undertaken in this Section 5.025.2(a). The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company an Acquisition Proposal to promptly return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 2 contracts
Sources: Merger Agreement (Unified Grocers, Inc.), Merger Agreement (Supervalu Inc)
No Solicitation or Negotiation. The Company agrees thatDuring the Pre-Closing Period, except as expressly permitted by this Section 5.025.3 or in connection with any Parent Legacy Transaction conducted in accordance with Section 5.23, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallParent shall not, and it Parent shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officersofficers and employees not to, employees, investment bankers, attorneys, accountants and other advisors, agents shall cause its and representatives are hereinafter referred to as its “Representatives”) their respective Representatives not to, directly or indirectly:
(i) solicit, initiate, solicitinduce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL) any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company a Parent Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any Company way with any Person regarding any Parent Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Parent Acquisition Proposal; or;
(iii) provide any non-public information or data concerning Parent or any of its Subsidiaries to any Person in connection with with, or for the purpose of soliciting, initiating, inducing, encouraging or facilitating, any Company Parent Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Parent Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to, or that could reasonably be expected to lead to, a Parent Acquisition Proposal (other than an Acceptable Parent Confidentiality Agreement entered into in accordance with Section 5.3(b));
(v) adopt, approve, declare advisable or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Parent Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(vi) take any action or exempt any Person (other than the Company and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or Parent’s organizational or other governing documents; or
(ivvii) otherwise knowingly facilitate resolve, publicly propose or agree to do any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company Parent shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Parent Acquisition Proposal, or inquiry, proposal or offer that would could reasonably be expected to lead to a Company Parent Acquisition Proposal and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Parent Acquisition Proposal. The Company will promptly inform Parent shall (i) as soon as reasonably practicable after the Persons referred date of this Agreement (and in all events no later than three Business Days), deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Parent Acquisition Proposal within the last 12 months, to the effect that Parent is ending all discussions and negotiations with such Person with respect to any such Parent Acquisition Proposal effective as of the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning the Company previously furnished to such Person by or on behalf of Parent relating to any of Parent Acquisition Proposal (and Parent shall use its Subsidiaries reasonable best efforts to have such information returned or destroyed) and promptly immediately terminate all physical and electronic data room access previously granted to any such party or its Representatives and (ii) commencing on the date of this Agreement, prohibit any third party (other than the Company and its Representatives) from having access to any physical or electronic data room relating to any possible Parent Acquisition Proposal. Parent shall use its reasonable best efforts to enforce the terms of each confidentiality agreement with any such Person. Parent shall not grant any waiver of, or agree to any amendment or modification to, or release any such Person from, any such agreement, to permit such Person to submit a Parent Acquisition Proposal, unless in any such case the Parent Board shall have determined, in good faith, after consultation with outside legal counsel, that the failure to take such actions would be inconsistent with the fiduciary duties of the Parent Board to the holders of Parent capital stock under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Standard Biotools Inc.), Merger Agreement (Standard Biotools Inc.)
No Solicitation or Negotiation. The During the Pre-Closing Period, the Company agrees that, except as expressly permitted by this Section 5.02, neither that it nor any of and its Subsidiaries nor any shall not, and that it shall use its commercially reasonable efforts to ensure that none of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s respective directors, officers, employees, investment bankers, attorneys, accountants and other advisorsadvisors or representatives (such directors, agents officers, employees, investment bankers, attorneys, accountants, other advisors and representatives are hereinafter referred to as its collectively, “Representatives”) not toshall, directly or indirectly, take any of the following actions:
(i) solicit, initiate, solicit, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing non-public information) any inquiries or the making of any proposal or offer that constitutes(including any proposal from or offer to the Company’s shareholders) with respect to, or that would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage enter into, continue or otherwise participate in any discussions or negotiations relating regarding, or furnish to any Company Acquisition Proposal person any non-public information or grant access to its properties, books and records or personnel in connection with, any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide terminate, release, amend, waive or modify any information provision of any confidentiality, standstill or data similar agreement to any Person in connection with any Company Acquisition Proposal which it or any inquiryof its Subsidiaries is a party (or fail to take reasonable measures to enforce the provisions of any such agreements), proposal or offer that take any action to exempt any person (other than Parent, Merger Sub and their Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL or otherwise cause such restrictions not to apply. Notwithstanding the foregoing, the Company may, but only prior to the approval and adoption of this Agreement at Company Meeting, to the extent failure to do so would reasonably be expected to lead result in a breach of the fiduciary duties to stockholders of the Company Board under applicable law, as determined in good faith by the Special Committee after consultation with outside counsel, in response to a bona fide, unsolicited written Acquisition Proposal received by the Company after the date of this Agreement that the Special Committee determines in good faith after consultation with outside counsel and its financial advisor (which shall be First Albany or another nationally recognized investment banking firm) is reasonably expected to result in a Superior Proposal, in each case, so long as such Acquisition Proposal did not result from a breach by the Company of this Section 6.1 and the Company has complied with this Section 6.1 in all material respects, (x) furnish information with respect to the Company to the person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement, (y) participate in discussions or negotiations with such person and its Representatives regarding any Acquisition Proposal, and (z) waive any standstill provisions related to the submission of such Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and provided that the Company shall cause its Subsidiaries substantially contemporaneously make available to Parent and use its reasonable best efforts Merger Sub (to cause its Representatives to, immediately cease and cause the extent it has not previously done so) all nonpublic information made available to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company such person making such Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 2 contracts
Sources: Merger Agreement (Encore Medical Corp), Merger Agreement (Encore Medical, L.P.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallthe Company shall not, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers and employees not to, and shall instruct and use its best efforts to cause its investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Person’s directorscollectively, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company an Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to with any Company Acquisition Proposal or Person regarding any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or;
(iii) provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company potential Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would could reasonably be expected to lead to a Company an Acquisition Proposal. The Company will promptly inform the Persons individuals and entities referred to in the preceding sentence hereof of the obligations undertaken in this Section 5.026.2. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company an Acquisition Proposal to promptly return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 2 contracts
Sources: Merger Agreement (Leap Wireless International Inc), Merger Agreement (At&t Inc.)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article VII, except as expressly permitted by this Section 5.025.2, neither it the Company nor any of its Subsidiaries nor any of shall, and the Company shall cause its or and its Subsidiaries’ officersdirectors, directors officers and employees shallnot to, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ their respective investment bankers, attorneys, accountants and other advisors, agents and or representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any Company Acquisition Proposal or way not permitted by this Section 5.2 with any inquiry, Person regarding any proposal or offer that the consummation of which would reasonably be expected to lead to constitute a Company Acquisition Proposal; or;
(iii) provide any information or data concerning the Company or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that the consummation of which would reasonably be expected to lead to constitute a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate approve or recommend, make any effort public statement approving or attempt recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to make lead to, a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. The Company will promptly inform shall take all actions necessary to enforce its rights under the Persons referred provisions of any “standstill” agreement between the Company and any Person (other than Parent), and shall not grant any waiver of, or agree to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making any amendment or modification to, any such agreement, to permit such person to submit a Company Acquisition Proposal to return or destroy (as Proposal; provided in that the terms of such confidentiality agreement) all confidential information concerning foregoing shall not restrict the Company from permitting a Person to orally and non-publicly request the waiver of a “standstill” or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted similar obligation or from granting such a waiver, in each case, to the extent the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such Personaction would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Engility Holdings, Inc.), Merger Agreement (Science Applications International Corp)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article VII, except as expressly permitted by this Section 5.025.3, neither it Parent nor any of its Subsidiaries nor any of shall, and Parent shall cause its or and its Subsidiaries’ officersdirectors, directors officers and employees shallnot to, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) their Representatives not to, directly or indirectly:
(i) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company a Parent Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any Company Acquisition Proposal or way not permitted by this Section 5.3 with any inquiry, Person regarding any proposal or offer that the consummation of which would reasonably be expected to lead to constitute a Company Parent Acquisition Proposal; or;
(iii) provide any information or data concerning Parent or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that the consummation of which would reasonably be expected to lead to constitute a Company Parent Acquisition Proposal; or
(iv) otherwise knowingly facilitate approve or recommend, make any effort public statement approving or attempt recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to make lead to, a Company Parent Acquisition Proposal. The Company Parent shall, and the Company Parent shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Parent Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Parent Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Parent Acquisition Proposal. The Company will promptly inform Parent shall not grant any waiver of, or agree to any amendment or modification to, any “standstill” agreement, to permit such Person to submit a Parent Acquisition Proposal; provided that the Persons referred foregoing shall not restrict Parent from permitting a Person to orally and non-publicly request the waiver of a “standstill” or similar obligation or from granting such a waiver, in each case, to the preceding sentence of extent the obligations undertaken Parent Board determines in this Section 5.02. The Company will promptly request from each Person good faith, after consultation with outside legal counsel, that has executed a confidentiality agreement in connection the failure to take such action would reasonably be expected to be inconsistent with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Persondirectors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Twilio Inc), Merger Agreement (SendGrid, Inc.)
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.02, that neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees or officers shall, and that it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants and other advisorsagents, agents and advisors or representatives (a Person’s such directors, officers, employees, investment bankers, attorneys, accountants and other advisorsagents, agents and representatives are hereinafter referred to as its advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate or encourage, any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal regarding, or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any non-public information or non-public data to any Person in connection with or in response to, or otherwise knowingly facilitate or encourage, any Acquisition Proposal;
(iii) modify, amend, terminate, waive or release any standstill or similar agreement to which the Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected Subsidiary is a party applicable to lead to a Company any Acquisition Proposal; or
(iv) otherwise knowingly facilitate take any effort action to render any Takeover Statute inapplicable to an Acquisition Proposal or attempt to make a Company the transaction contemplated thereby or exempt or exclude any person from the applicability of any Takeover Statute in connection with an Acquisition Proposal. The Company shallNotwithstanding anything in the foregoing to the contrary, and at any time prior to the time, but not after, this Agreement is approved by the Company’s shareholders at the Shareholders Meeting, the Company shall cause its Subsidiaries and use its reasonable best efforts may (A) provide information in response to cause its Representatives to, immediately cease and cause a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors of the Company receives from the Person so requesting such information an executed confidentiality agreement on terms with respect to be terminated any confidentiality of information substantially similar to those contained in the Confidentiality Agreement; or (B) engage in discussions and or negotiations with any Person conducted heretofore with respect to any Company who has made such an unsolicited bona fide written Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons if (x) in each such case referred to in clause (A) or (B) above, the preceding sentence board of directors of the obligations undertaken Company determines in this Section 5.02good faith after consultation with outside legal counsel that the failure to take such action is inconsistent with its fiduciary duties under applicable Law; and (y) in each such case referred to in clause (A) or (B), if the board of directors of the Company has determined in good faith based on all the information then available and after consultation with the Company’s financial advisors and legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. The In the event that the Company will promptly request from each Person that has executed a shall enter into any such confidentiality agreement in connection with its consideration containing a standstill provision which is applicable for a period which is shorter than the period of making a Company Acquisition Proposal the standstill applicable to return Parent (or destroy (as provided in the terms of event such confidentiality agreement) all confidential information concerning agreement shall contain no standstill provision), the Company or any period of its Subsidiaries and promptly terminate all physical and electronic data access previously granted the standstill applicable to Parent shall automatically be reduced to the period of the standstill applicable to such PersonPerson (or be eliminated in the event such confidentiality agreement shall contain no standstill provision).
Appears in 2 contracts
Sources: Merger Agreement (Equifax Inc), Merger Agreement (Talx Corp)
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage continue, engage, authorize or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or;
(iii) provide any information or data or access to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or;
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal; or
(v) approve, adopt, recommend or enter into any letter of intent, memorandum of understanding, agreement in principle or other agreement or understanding relating to a Company Acquisition Proposal (other than a confidentiality agreement entered into pursuant to and in accordance with Section 5.02(b)). The Company shall, and the Company shall cause its Subsidiaries and its and its Subsidiaries’ respective officers, directors and employees to and use its reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any discussions and existing discussions, solicitations or negotiations with any Person conducted or engaged in heretofore with respect to any Company Acquisition Proposal, or proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement or otherwise been provided with confidential information in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement, if applicable) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such PersonPerson and its Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Roku, Inc), Agreement and Plan of Merger (Fox Corp)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.4, neither it nor any during the Interim Period, the Company shall not, and shall cause each of its Subsidiaries nor any of and its or its Subsidiaries’ officers, and their respective officers and directors and employees shallnot to, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
, (i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate any proposal or offer or any inquiries or regarding the making of any proposal or offer, including any proposal or offer to its shareholders, that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information in connection with or for the purpose of encouraging or facilitating, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
Takeover Proposal (other than, in response to an unsolicited inquiry that did not arise from a breach of Section 6.4(a) (other than any breach that is both immaterial and unintentional), solely to ascertain facts from the Person making such Company Takeover Proposal consistent with its fiduciary duties about such Company Takeover Proposal and the Person that made it) or (iii) provide resolve or agree to do any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company shall, and the Company shall cause its Subsidiaries Subsidiaries, and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately after the date hereof, cease any and cause to be terminated any all existing solicitation, discussions and or negotiations with any Person conducted heretofore Persons (or provision of any nonpublic information to any Persons) with respect to any Company Acquisition Proposalinquiry, proposal or offer that constitutes, or proposal that would reasonably be expected to lead to to, a Company Acquisition Takeover Proposal. The Company will promptly inform the Persons referred to , except as set forth in the preceding last sentence of the obligations undertaken in this Section 5.026.4(a). The Within three (3) Business Days following the date hereof, the Company will promptly shall (A) request from in writing that each Person that has heretofore executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Takeover Proposal or potential Company Takeover Proposal promptly destroy or return to return or destroy (as provided in the terms of such confidentiality agreement) Company all confidential nonpublic information concerning heretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of such confidentiality agreement and (B) terminate access to any physical or electronic data rooms relating to a possible Company Takeover Proposal by such Person and its Representatives. The Company shall not, and shall cause each of its Subsidiaries and promptly terminate all physical its and electronic data access previously granted their respective officers and directors not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, terminate, waive, amend, release or modify any confidentiality or standstill provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Company Takeover Proposal or potential Company Takeover Proposal, and shall enforce the provisions of any such Personagreement; provided that, prior to obtaining the Company Shareholder Approval, the Company may take any such action with respect to any provision of any confidentiality or standstill agreement that prohibits or purports to prohibit a proposal being made to the Company Board if the Company Board has determined in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with its fiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
No Solicitation or Negotiation. The Company Amcor agrees that, except as expressly permitted by this Section 5.025.4, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallshall not, and it shall instruct cause the Amcor Subsidiaries and each of its and the Amcor Subsidiaries’ respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its and its the Amcor Subsidiaries’ respective third-party consultants, financial advisors, accountants, legal counsel, investment bankers, attorneys, accountants bankers and other advisorsthird party agents, agents advisors and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Amcor Competing Proposal;
(ii) engage or otherwise participate in any discussions or negotiations with any third party relating to any Company Acquisition Amcor Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition an Amcor Competing Proposal; or;
(iii) provide any non-public information or data to any Person in connection with with, related to or in contemplation of any Company Acquisition Amcor Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition an Amcor Competing Proposal;
(iv) amend, grant any waiver or release under or fail to enforce any standstill or similar agreement with respect to any class of equity securities of Amcor or any of the Amcor Subsidiaries, unless the Amcor Board of Directors determines after considering advice from outside legal counsel that the failure to amend, waive, release or fail to enforce such provision would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law;
(v) consent to or agree that takeover offers and accompanying documents be sent earlier under section 633(6) of the Australian Act;
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement relating to an Amcor Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Amcor Competing Proposal (other than an Amcor Competing Proposal NDA); or
(ivvii) otherwise knowingly facilitate (A) fail to make, withdraw or modify in a manner adverse to Bemis, or publicly propose to fail to make, withdraw or modify in a manner adverse to Bemis, the Amcor Board Recommendation, (B) fail to include the Amcor Board Recommendation in the Scheme Booklet, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve an Amcor Competing Proposal or (D) fail to reaffirm, by way of an ASX announcement, the Amcor Board Recommendation by the close of business on the 10th Business Day after the commencement of an Amcor Competing Proposal pursuant to a publicly announced takeover bid under Australian Law (any effort of the foregoing in this Section 5.4(a)(vii), an “Amcor Adverse Recommendation Change”). Nothing contained herein shall prevent the Amcor Board of Directors from making a customary statement that Amcor Shareholders should, with respect to an unsolicited Amcor Competing Proposal and during a period of no more than ten business days from the date of commencement of such Amcor Competing Proposal, “take no action pending further advice” (or attempt words to make that effect); provided, however, that any such statement that constitutes or contains an Amcor Adverse Recommendation Change shall be subject to the provisions of this Section 5.4(a) (it being understood, for the avoidance of doubt, that a Company Acquisition Proposaldisclosure that constitutes only a customary “take no action pending further advice” statement with respect to an unsolicited Amcor Competing Proposal and during a period of no more than ten business days from the date of commencement of such Amcor Competing Proposal or similar communication shall not in and of itself be deemed to be an Amcor Adverse Recommendation Change). The Company Amcor shall, and the Company Amcor shall cause its the Amcor Subsidiaries and each of its and the Amcor Subsidiaries’ respective directors, officers and employees to, and shall use its reasonable best efforts to cause its Representatives and the Amcor Subsidiaries’ respective third-party consultants, financial advisors, accountants, legal counsel, investment bankers and other third party agents, advisors and representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Amcor Competing Proposal, or proposal or offer that would reasonably be expected to lead to a Company Acquisition an Amcor Competing Proposal. The Company Amcor will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.025.4. The Company Amcor will promptly (and in each case within 24 hours from the date of this Agreement) request from each Person (and such Person’s Representatives) that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition an Amcor Competing Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company Amcor or any Amcor Subsidiary and shall promptly (and in each case within 24 hours from the date of its Subsidiaries and promptly this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 2 contracts
Sources: Transaction Agreement (Bemis Co Inc), Transaction Agreement
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its the officers and directors of it or its Subsidiaries’ officers, directors and employees Subsidiaries shall, and that it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Person’s such directors, officers, employees, investment bankers, attorneys, accountants and other advisorsadvisors or representatives, agents and representatives are hereinafter referred to as its collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide or make available any non-public information or data to any Person relating to any the Company Acquisition Proposal or any inquiryof its Subsidiaries relating to, proposal or offer that would reasonably be expected to lead to a Company to, any Acquisition Proposal; or, except to notify such Person of the existence of this Section 6.2;
(iii) provide otherwise facilitate knowingly any information effort or data attempt to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company make an Acquisition Proposal; or
(iv) otherwise knowingly facilitate enter into or execute, or propose to enter into or execute, any effort or attempt agreement relating to make a Company an Acquisition Proposal. The Notwithstanding anything in the foregoing to the contrary, prior to the date on which the Company shallRequisite Vote is obtained, but not after, the Company and its Representatives may (A) provide information in response to a request therefor by a Person who has made a bona fide written Acquisition Proposal if (1) such Acquisition Proposal did not result from a knowing or intentional breach of the Company’s obligations under this Section 6.2 and (2) the Company receives from the Person so requesting such information an executed confidentiality agreement on terms that, taken as a whole, are not less restrictive to the other party than those contained in the Confidentiality Agreement and the Company shall cause its Subsidiaries complies with the Confidentiality Agreement; it being understood that such confidentiality agreement must include a standstill provision, but need not prohibit the making, or amendment, of a private Acquisition Proposal; and use its reasonable best efforts (3) the Company promptly (but in any event within twenty-four (24) hours of providing such information) discloses (and, if applicable, provides copies of) any such information to cause its Representatives to, immediately cease and cause Parent to be terminated the extent not previously disclosed or provided to Parent; (B) engage or participate in any discussions and or negotiations with any Person conducted heretofore with respect to any Company who has made such a bona fide written Acquisition Proposal, subject to the conditions set forth in clause (A)(1)-(3) above; or proposal (C) after having complied with Section 6.2(c), authorize, adopt, approve, recommend, or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only to the extent that, (x) prior to taking any action described in clause (A), (B) or (C) above, the board of directors of the Company, or any committee thereof, determines in good faith that failure to take such action would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform be inconsistent with the Persons directors’ fiduciary duties under applicable Law, (y) in each such case referred to in clause (A) or (B) above, the preceding sentence board of directors of the obligations undertaken Company, or any committee thereof, has determined in this Section 5.02. The Company will promptly request from each Person good faith based on the information then available that has executed a confidentiality agreement in connection with its consideration of making a Company such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to return or destroy result in a Superior Proposal, and (as provided z) in the terms case referred to in clause (C) above, the board of such confidentiality agreement) all confidential information concerning directors of the Company Company, or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to committee thereof, determines in good faith that such PersonAcquisition Proposal is a Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Shire PLC), Merger Agreement (Dyax Corp)
No Solicitation or Negotiation. The Company agrees that(i) During the Pre-Closing Period, except as expressly permitted by this Section 5.025.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors the Company and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankersdirectors and officers shall not, attorneys, accountants and other advisors, agents shall not direct any of its and representatives (a Person’s directors, officers, their respective employees, investment bankers, attorneys, accountants and other advisors, agents or representatives (collectively, along with such directors and representatives are hereinafter referred to as its officers, “Representatives”) not to, directly or indirectly:
(iA) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Proposal;
(iiB) engage or otherwise participate in any discussions or negotiations relating or cooperate in any way with any Person regarding any proposal or offer the consummation of which would constitute a Company Acquisition Proposal;
(C) provide any information or data concerning the Company or any of its Subsidiaries to any Person in connection with any proposal the consummation of which would constitute a Company Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Company Acquisition Proposal;
(D) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to a Company Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal; or;
(iiiE) provide adopt, approve or recommend or make any information public statement approving or data to any Person in connection with any Company Acquisition Proposal or recommending any inquiry, proposal or offer that would constitutes, or could reasonably be expected to lead to to, a Company Acquisition ProposalProposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any Person (other than Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Company’s organizational or other governing documents; or
(ivF) otherwise knowingly facilitate resolve, publicly propose or agree to do any effort or attempt to make a Company Acquisition Proposal. of the foregoing.
(ii) The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would could reasonably be expected to lead to a Company Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. The As soon as reasonably practicable after the date of this Agreement, the Company will promptly inform the Persons referred shall deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Acquisition Proposal within the last 30 days, to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Company Acquisition Proposal, effective on the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted furnished to such Person. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any Person (other than Parent), and, subject to Section 5.2(b), shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such Person to submit a Company Acquisition Proposal.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ACELYRIN, Inc.), Merger Agreement (Alumis Inc.)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article VII, except as expressly permitted by this Section 5.025.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallthe Company shall not, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers and employees not to, and shall direct its and their respective investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate any inquiries inquiries, expressions of interest or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to with any Person regarding any Company Acquisition Proposal Proposal;
(iii) provide (including through access to any data room) any non-public information or data concerning the Company or any of its Subsidiaries to any Person in connection with, or that would reasonably be expected to be used for purposes of formulating, any Company Acquisition Proposal;
(iv) approve or recommend, make any public statement approving or recommending, or enter into any agreement, letter of intent, memorandum of understanding, agreement in principle or Contract relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to to, a Company Acquisition Proposal; or
(iiiv) provide any information or data to any Person in connection with submit any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected matter related thereto to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalthe vote of the stockholders of the Company. The Company shall, and the Company shall cause its the Company Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to, (x) immediately cease and cause to be terminated any solicitation, discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will , (y) promptly inform the Persons referred terminate access by any such Person to in the preceding sentence any physical or electronic data rooms, and any other access to non-public information or data of the obligations undertaken in this Section 5.02. The Company will and the Company Subsidiaries, made available by the Company, the Company Subsidiaries or their Representatives and (z) promptly request from instruct each Person that has previously executed a confidentiality agreement in connection with its such Person’s consideration of making a Company Acquisition Proposal to return to the Company or destroy (as provided in the terms any non-public information previously furnished to such Person or any of such confidentiality agreement) all confidential information concerning Person’s Representatives by or on behalf of the Company. Without limiting the foregoing, any breach of the restrictions set forth in this Section 5.2 by any Affiliate or Representative of the Company or any Company Subsidiary shall be deemed to be a breach of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personthis Section 5.2 by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, officers and directors and employees shall, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to with any Company Acquisition Proposal or Person regarding any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any non-public information or data to any Person in connection with with, or otherwise knowingly facilitate, any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would could be reasonably be expected likely to lead to a Company an Acquisition Proposal. The Company will promptly inform the Persons individuals and entities referred to in the preceding sentence of the obligations undertaken in this Section 5.026.2. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company an Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.
Appears in 2 contracts
Sources: Merger Agreement (At&t Inc.), Merger Agreement (Directv)
No Solicitation or Negotiation. The Company agrees hereby covenants that, except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallthe Company shall not, and it the Company shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ investment bankersofficers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisorsadvisors or representatives (such officers, agents directors, employees, investment bankers, attorneys, accountants and representatives are hereinafter referred to as its other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly, and on becoming aware of, shall take reasonable action to stop its Representatives from continuing to:
(i) initiate, solicit, knowingly initiate or encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company Acquisition Proposal;Proposal (as defined in Section 6.2(e)); or
(ii) engage enter into, or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal regarding, or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data furnish to any Person in connection with any Company Acquisition Proposal non-public information for the purpose of encouraging or facilitating, any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause direct its Representatives to, cease immediately cease and cause to be terminated any all discussions and negotiations that commenced prior to the date of this Agreement regarding any Acquisition Proposal existing on the date of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement the Company may, to the extent the Company Board determines in good faith, after consultation with outside counsel, that such action is likely required under applicable Law, in response to (A) a Superior Proposal (as defined in Section 6.2(e)) or (B) a bona fide, unsolicited written Acquisition Proposal that the Company Board determines in good faith after consultation with outside counsel and its financial advisor could lead to a Superior Proposal (any Person conducted heretofore such Acquisition Proposal, a “Potential Superior Proposal”), (1) furnish information with respect to any the Company Acquisition Proposal, to the Person making such Superior Proposal or proposal that would reasonably be expected to lead Potential Superior Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party (except that it need not include any “standstill” provisions) than the Confidentiality Agreement, dated January 13, 2005, between Parent and the Company Acquisition Proposal. The Company will promptly inform (the Persons referred “Confidentiality Agreement”) (provided, however, that, to the extent any such confidentiality agreement does not contain any “standstill” provisions, the Confidentiality Agreement shall be automatically amended (without any further action by the parties) such that the “standstill” provisions in the preceding sentence Confidentiality Agreement restricting activities of the obligations undertaken Parent and its Subsidiaries shall be deleted), and (2) participate in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return discussions or destroy negotiations (as provided in the terms including solicitation of such confidentiality agreementa revised Superior Proposal or Potential Superior Proposal) all confidential information concerning the Company with such Person and its Representatives regarding any such Superior Proposal or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such PersonPotential Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Usf Corp), Merger Agreement (Yellow Roadway Corp)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.4, neither it nor any from the date hereof until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall not, and shall cause each of its Subsidiaries nor any of and its or its Subsidiaries’ officers, directors and employees shalltheir respective officers and directors, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
, (i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate any proposal or offer or any inquiries or regarding the making of any proposal or offer, including any proposal or offer to its stockholders, that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Takeover Proposal;
, or (ii) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or furnish to any Company Acquisition Proposal or other Person any information with respect to, any inquiry, proposal or offer that would constitutes, or could reasonably be expected to lead to to, a Company Acquisition Proposal; or
Takeover Proposal (iii) provide any information or data other than, in response to any an unsolicited inquiry that did not arise from a breach of this Section 6.4(a), solely to ascertain facts from the Person in connection making such Company Takeover Proposal consistent with any its fiduciary duties about such Company Acquisition Takeover Proposal or any inquiryand the Person that made it, proposal or offer that would reasonably be expected and to lead refer the inquiring Person to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalthis Section 6.4). The Company shall, and the Company shall cause its Subsidiaries Subsidiaries, and use its reasonable best efforts to and their respective officers and directors to, and shall cause its and its Subsidiaries’ other Representatives to, immediately cease any and cause to be terminated any all existing solicitation, discussions and or negotiations with any Person conducted heretofore Persons (or provision of any non-public information to any Persons) with respect to any Company Acquisition Proposalinquiry, proposal or offer that constitutes, or proposal that would could reasonably be expected to lead to to, a Company Acquisition Takeover Proposal. The Company will shall promptly inform the Persons referred to (A) request in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from writing that each Person that has heretofore executed a confidentiality agreement within the six (6) month period immediately preceding the date hereof in connection with its consideration of making a Company Acquisition Takeover Proposal or potential Company Takeover Proposal promptly destroy or return to return or destroy (as provided in the terms of such confidentiality agreement) Company all confidential non-public information concerning heretofore furnished by the Company or any of its Subsidiaries Representatives to such Person or any of its Representatives in accordance with the terms of such confidentiality agreement and promptly (B) terminate all access to any physical and or electronic data access previously granted rooms relating to a possible Company Takeover Proposal by such PersonPerson and its Representatives. The Company shall not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which the Company is a party with respect to any Company Takeover Proposal or potential Company Takeover Proposal, and shall enforce the provisions of any such agreement, which shall include seeking any injunctive relief available to enforce such agreement (provided, that the Company shall be permitted to grant waivers of, and not enforce, any standstill agreement, but solely to the extent that the Company Board (after considering the recommendation of the Company Special Committee) has determined in good faith, after consultation with the Company’s independent financial advisor and outside legal counsel, that failure to take such action would be inconsistent with its fiduciary duties under applicable Law).
Appears in 2 contracts
Sources: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
No Solicitation or Negotiation. (a) The Company agrees thatCompany, except as expressly permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ and other affiliates and their respective officers, directors directors, representatives (including the Company Financial Advisor or any other investment banker and employees any attorneys and accountants) shall, and it the Company shall instruct and use all reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants ' and other advisors, affiliates' respective non-officer employees with managerial responsibilities and agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in immediately cease any discussions or negotiations relating with any parties with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Third Party Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts also agrees promptly to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person person that has heretofore executed a confidentiality agreement in connection with its consideration of making a acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company Acquisition Proposal or any Subsidiary, if any, to return (or destroy (as provided in if permitted by the terms of such applicable confidentiality agreement, destroy) all confidential information concerning heretofore furnished to such person by or on behalf of the Company or any Subsidiary and, if requested by Parent, to enforce such person's obligation to do so. Neither the Company nor any Subsidiary or other affiliates shall, nor shall the Company authorize or permit any of its Subsidiaries or their respective officers, directors or representatives to, and the Company shall use all reasonable efforts to cause its and its Subsidiaries' and other affiliates' respective non-officer employees with managerial responsibilities and agents not to, directly or indirectly, (i) encourage, solicit, initiate or knowingly facilitate the submission of any proposal for a Third Party Acquisition Proposal, (ii) participate in or initiate any discussions or negotiations regarding, or provide any non-public information with respect to, the Company or any Subsidiary or their respective businesses, assets or properties (other than Parent and Acquisition or any designees of Parent and Acquisition) in connection with, or take any other action to knowingly facilitate any Third Party Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Third Party Acquisition Proposal or (iii) enter into any agreement with respect to any Third Party Acquisition Proposal; provided, however, that if the Company Board determines in good faith, after consultation with legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under the DGCL, the Company may, in response to an unsolicited bona fide written Third Party Acquisition Proposal that the Company Board determines in good faith, based on consultation with the Company Financial Advisor, constitutes or is reasonably likely to result in a Superior Proposal which, if accepted, is reasonably capable of being consummated and only for so long as the Board of Directors so determines in good faith that its actions are reasonably likely to lead to a Superior Proposal, (i) furnish only to any Third Party pursuant to a confidentiality agreement in a form substantially similar to the Nondisclosure Agreement (A) the information with respect to the Company of the same type and scope that the Company provided to Parent prior to the date hereof and (B) any such additional information that such Third Party requests, but only if the Company is permitted, and does in fact, simultaneously furnish such additional information to Parent, and (ii) participate in discussions and negotiations regarding such Third Party Acquisition Proposal; provided, further, that nothing herein shall prevent the Company Board from taking and disclosing to the Company's stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender or exchange offer. The Company shall promptly terminate (and in any event within one (1) day after the Company attains knowledge thereof) (x) notify Parent in the event the Company or any Subsidiary or other affiliates or any of their respective officers, directors, employees and agents receives any Third Party Acquisition Proposal, including the terms and conditions thereof and the identity of the party submitting such proposal, and any request for confidential information made in connection with a Third Party Acquisition Proposal, (y) provide a copy of any written agreements, proposals or other materials the Company receives from any such person or group (or its representatives), and (z) promptly, and in any event within one (1) day, advise Parent of any material modifications thereto.
(b) Except as set forth in this Section 4.3(b), the Company Board shall not make a Change in the Company Recommendation or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Third Party Acquisition Proposal. Notwithstanding the foregoing, if the Company Board by a majority vote determines in its good faith judgment prior to the Company Stockholders Meeting, after consultation with outside legal counsel, that it is required to make a Change in the Company Recommendation in order to comply with its fiduciary duties, the Company Board may recommend a Superior Proposal, but only (i) after providing written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and (ii) if Parent does not, within five (5) days of Parent's receipt of the Notice of Superior Proposal, make an offer that the Company Board by a majority vote determines in its good faith judgment (after consultation with the Company Financial Advisor or another financial advisor of nationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal, provided, however, that the Company shall not be entitled to enter into an agreement with respect to a Superior Proposal unless and until this Agreement is terminated pursuant to Section 6.1 and the Company has paid the fees required by Section 6.3. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a Third Party Acquisition Proposal or otherwise in order to comply with its fiduciary duties or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Company Board in violation of this Section 4.3(b).
(c) For the purposes of this Agreement, "Third Party Acquisition Proposal" means, other than in connection with the Merger or as otherwise specifically contemplated by this Agreement, any proposal relating to (i) any merger, consolidation, share exchange, business combination, recapitalization or other similar transaction or series of related transactions involving the Company or any Subsidiary; (ii) any sale, lease, exchange, transfer or other disposition (including by way of merger, consolidation or exchange), in a single transaction or a series of related transactions, of the assets of the Company or any Subsidiary constituting fifteen percent (15%) or more of the consolidated assets of the Company or accounting for fifteen percent (15%) or more of the consolidated revenues of the Company; (iii) any tender offer, exchange offer or similar transactions or series of related transactions made by any person involving the Company's common stock constituting fifteen percent (15%) or more of the Company's common stock; (iv) the acquisition by any person (other than Parent or any of its affiliates) of beneficial ownership (as determined pursuant to Rule 13d-3 of the Exchange Act) or the formation of any group (as defined in Section 13(d) of the Exchange Act) to acquire beneficial ownership (as determined pursuant to Rule 13d-3 of the Exchange Act) of more than fifteen percent (15%) of the Company's common stock or the common stock of any Subsidiary of the Company; (v) the adoption by the Company of a plan of liquidation or the declaration or payment of an extraordinary dividend (whether in cash or other property); (vi) the repurchase by the Company or any Subsidiary of more than fifteen (15%) of the outstanding Shares; (vii) the acquisition by the Company or any Subsidiary by merger, purchase of stock or assets, joint venture or otherwise of a direct or indirect ownership interest or investment in any person or business whose annual revenues or assets is equal to or greater than 20% of the annual revenues or assets of the Company and the Subsidiaries, taken as a whole, for and at the 12 month period ended September 30, 2003; or (viii) any other substantially similar transaction or series of related transactions that reasonably could be expected to result in the acquisition of a controlling interest in the Company. For purposes of this Agreement, a "Third Party" means a person (which includes a "person" as such term is defined in Section 13(d)(3) of the Exchange Act) other than Parent, Acquisition or any affiliate thereof. For purposes of this Agreement, a "Superior Proposal" means any bona fide Third Party proposal (1) to acquire, directly or indirectly, for consideration consisting solely of cash and/or publicly-traded securities (including securities that will be publicly-traded immediately upon the consummation of such Superior Proposal), one hundred percent 100% of the Shares then outstanding, or all physical or substantially all of the assets of the Company; (2) that contains terms and electronic data access previously granted conditions that the Company Board by a majority vote determines in good faith (after consultation with the Company Financial Advisor or another financial advisor of nationally recognized reputation) to such Personbe more favorable to the Company's stockholders than the Merger but in any event, the consideration paid must be at least 5% greater than that offered by the Parent; (3) that the Company Board by a majority vote determines in its good faith judgment (after consultation with the Company Financial Advisor or another financial advisor of nationally recognized reputation and its legal counsel) to be reasonably capable of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal); (4) that does not contain a "right of first refusal" or "right of first offer" with respect to any counter-proposal that Parent might make; and (5) that does not contain any "due diligence" condition and for which any financing upon which it is conditioned is committed.
Appears in 2 contracts
Sources: Merger Agreement (Kforce Inc), Merger Agreement (Hall Kinion & Associates Inc)
No Solicitation or Negotiation. The Subject to the terms of this Section 5.3, from the No-Shop Period Start Date (or, with respect to an Exempted Person, the Cut-Off Time) until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company agrees thatwill, except as and will cause its Subsidiaries and its and their respective officers and directors, and will instruct and use reasonable efforts to cause each of its other Representatives to cease and cause to be terminated any discussions or negotiations with any Third Person and its Representatives relating to any Acquisition Proposal or Acquisition Transaction (or any proposal or inquiry that is reasonably expected to lead to an Acquisition Proposal) that are not expressly permitted by this Section 5.025.3(b), neither it nor request the prompt return or destruction of all non-public information concerning or relating to the Company Group theretofore furnished to any such Person with whom a confidentiality agreement with respect to an Acquisition Proposal was entered into at any time within the twelve (12)-month period immediately preceding the No-Shop Period Start Date and will (A) cease providing any further information with respect to the Company or any Acquisition Proposal to any such Third Person or its Representatives; and (B) immediately terminate all access granted to any such Third Person and its Representatives to any physical or electronic data room (or any other diligence access). Subject to the terms of Section 5.3(c), from the No-Shop Period Start Date (or, with respect to an Exempted Person, the Cut-Off Time) until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries nor any of its or its Subsidiaries’ officerswill not, will cause their directors and employees shallofficers not to, and it shall will instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and their other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representative not to, directly or indirectly:
, (i) solicit, initiate, solicitpropose or induce the making, submission or announcement of, or knowingly encourage encourage, facilitate or otherwise knowingly facilitate assist, any inquiries Inquiry, offer or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company an Acquisition Proposal;
; (ii) engage furnish to any Third Person any non-public information relating to the Company Group or otherwise participate afford to any Third Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group, in any discussions such case with the intent to induce, or negotiations relating that would reasonably be expected to any Company result in, the making, submission or announcement of, or to knowingly encourage, facilitate or assist an Acquisition Proposal or any inquiry, Inquiries or the making of any proposal or offer that would reasonably be expected to lead to a Company an Acquisition Proposal; or
(iii) provide any information participate or data to any Person engage in connection discussions, communications or negotiations with any Company Third Person with respect to an Acquisition Proposal or Inquiry (other than solely to inform such Third Persons of the existence of the provisions contained in this Section 5.3); (iv) approve, endorse or recommend any inquiryproposal that constitutes or would reasonably be expected to lead to, proposal an Acquisition Proposal; or offer (v) enter into any letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (other than an Acceptable Confidentiality Agreement), an “Alternative Acquisition Agreement”); provided that would the Company may contact any Third Person with respect to an Acquisition Proposal solely for purposes of requesting a clarification of any ambiguous terms and conditions thereof so as to determine whether the Acquisition Proposal constitutes or could reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Superior Proposal. The Company shallNotwithstanding the commencement of the No-Shop Period Start Date, and the Company shall cause its Subsidiaries and use its reasonable best efforts may continue to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore engage in the activities described in Section 5.3(a) with respect to any Exempted Person, including with respect to any amended or modified Acquisition Proposal submitted by any Exempted Person following the No-Shop Period Start Date so long as the Company Board has determined in good faith that such amended or modified Acquisition Proposal, Proposal is or proposal that would reasonably be expected to lead to to, a Company Acquisition Superior Proposal. The Company will promptly inform , and the Persons referred to in the preceding sentence of the obligations undertaken restrictions in this Section 5.025.3(b) shall not apply with respect thereto, in each case, until the earlier of (A) the Cut-Off Time and (B) the time that such Person ceases to be an Exempted Person in accordance with the definition thereof. The From the No-Shop Period Start Date (or, with respect to an Exempted Person, the Cut-Off Time) until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will promptly request from each Person that has executed a not waive, terminate or modify any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to the Company Board (or any committee thereof), unless the Company Board has determined in connection good faith, after consultation with its consideration of making a Company Acquisition Proposal outside counsel, that failure to return or destroy (as provided in the terms of take such confidentiality agreement) all confidential information concerning the Company or any of action would reasonably be expected to be inconsistent with its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personfiduciary duties under applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Tufin Software Technologies Ltd.)
No Solicitation or Negotiation. The Company agrees that, except (a) Except as expressly permitted by set forth in this Section 5.026.1, neither it nor any of the Company shall not, and shall cause its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it shall instruct and use reasonable best efforts to cause its the Company’s and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants and other advisorsaccountants, agents and other advisors or representatives are hereinafter referred to as its (such directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, agents, other advisors and representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitcause, knowingly facilitate or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage enter into, continue or otherwise participate in any discussions or negotiations relating regarding, or furnish to any Company Acquisition Proposal Person any information for the purpose of knowingly encouraging or knowingly facilitating, any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide enter into any information or data agreement related to any Person Acquisition Proposal. Notwithstanding anything to the contrary set forth in connection this Agreement, the Company may, to the extent failure to do so would be inconsistent with the fiduciary obligations of the Company Board under New Jersey Law, as determined in good faith by the Company Board after considering applicable New Jersey Law and after consultation with outside counsel, (A) prior to obtaining the Company Shareholder Approval, acting solely through outside counsel, contact and engage in discussions (such contact and discussions, “Clarifying Discussions”) with any Company person or group and their respective Representatives who has made an unsolicited written Acquisition Proposal or solely for the purpose of clarifying such Acquisition Proposal and any inquiry, proposal or offer material terms thereof and the conditions to consummation so as to enable the Company Board to determine whether there is a reasonable possibility that would reasonably be expected to such Acquisition Proposal could lead to a Superior Proposal, provided that the Company shall notify the Buyer of such Acquisition Proposal and its intention to instruct counsel to engage in any such Clarifying Discussions in accordance with Section 6.1(c) prior to its outside counsel's engaging in any such Clarifying Discussions; and (B) in response to a bona fide, unsolicited written Acquisition Proposal made after the date of this Agreement and received by the Company Board after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor constitutes, or would be reasonably likely to result in, a Superior Proposal, provided that a breach of this Section 6.1 by the Company was not the principal cause of the Company's receiving the Acquisition Proposal; or
, and subject to compliance with Section 6.1(c), at any time prior to obtaining the Company Shareholder Approval and after providing the Buyer not less than two (iv2) otherwise knowingly facilitate Business Days’ written notice of its intention to take such actions, (x) furnish information with respect to the Company to the Person making such Acquisition Proposal and its Representatives pursuant to a confidentiality agreement no less restrictive on the other party than the Confidentiality Agreement, provided that (1) such confidentiality agreement may not include any effort provision calling for an exclusive right to negotiate with the Company or attempt precluding compliance by the Company with any provision of this Agreement including this Section 6.1 and (2) the Company advises the Buyer of all such non-public information delivered to make a such Person concurrently with its delivery to such Person and concurrently with its delivery to such Person the Company delivers to the Buyer all such information not previously provided to the Buyer, and (y) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition ProposalProposal (which discussions are not solely for purposes of clarification). The Company shallshall take all action reasonably requested by Buyer that is necessary to enforce each confidentiality, and the Company shall cause its Subsidiaries and use its reasonable best efforts standstill or similar agreement relating to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Person.an
Appears in 1 contract
Sources: Merger Agreement (Vital Signs Inc)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.4, neither it nor any from the date hereof until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall not, and shall cause each of its Subsidiaries nor any of and its or its Subsidiaries’ officers, directors and employees shalltheir respective officers and directors, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
, (iA) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate any proposal or offer or any inquiries or regarding the making of any proposal or offer, including any proposal or offer to its stockholders, that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Takeover Proposal;
, or (iiB) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or furnish to any Company Acquisition Proposal or other Person any information with respect to, any inquiry, proposal or offer that would constitutes, or could reasonably be expected to lead to to, a Company Acquisition Proposal; or
Takeover Proposal (iii) provide any information or data other than, in response to any an unsolicited inquiry that did not arise from a breach of this Section 6.4(a), solely to ascertain facts from the Person in connection making such Company Takeover Proposal consistent with any its fiduciary duties about such Company Acquisition Takeover Proposal or any inquiryand the Person that made it, proposal or offer that would reasonably be expected and to lead refer the inquiring Person to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalthis Section 6.4). The Company shall, and the Company shall cause its Subsidiaries Subsidiaries, and use its reasonable best efforts to and their respective officers and directors to, and shall cause its and its Subsidiaries’ other Representatives to, immediately cease any and cause to be terminated any all existing solicitation, discussions and or negotiations with any Person conducted heretofore Persons (or provision of any non-public information to any Persons) with respect to any Company Acquisition Proposalinquiry, proposal or offer that constitutes, or proposal that would could reasonably be expected to lead to to, a Company Acquisition Takeover Proposal. The Company will shall promptly inform the Persons referred to (1) request in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from writing that each Person that has heretofore executed a confidentiality agreement within the six (6) month period immediately preceding the date hereof in connection with its consideration of making a Company Acquisition Takeover Proposal or potential Company Takeover Proposal promptly destroy or return to return or destroy (as provided in the terms of such confidentiality agreement) Company all confidential non-public information concerning heretofore furnished by the Company or any of its Subsidiaries Representatives to such Person or any of its Representatives in accordance with the terms of such confidentiality agreement and promptly (2) terminate all access to any physical and or electronic data access previously granted rooms relating to a possible Company Takeover Proposal by such PersonPerson and its Representatives.”
Appears in 1 contract
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.024.2 and except with an Excluded Party (for so long as such Person is an Excluded Party) prior to the Excluded Party End Date, neither it nor any from and after the expiration of its Subsidiaries nor any of its or its Subsidiaries’ officersthe Go-Shop Period, directors and employees the Company shall, and it shall instruct and use reasonable best efforts to cause its Subsidiaries to, and shall cause its Subsidiaries’ investment bankersRepresentatives to, attorneysimmediately cease and terminate any discussions or negotiations with any Person or Persons that may be ongoing with respect to an Acquisition Proposal or any discussions or negotiations that could reasonably be expected to lead to an Acquisition Proposal. Except as permitted by this Section 4.2 and except with an Excluded Party (for so long as such Person is an Excluded Party), accountants from the expiration of the Go-Shop Period until the earlier of the Effective Time and other advisorsthe termination of this Agreement in accordance with its terms, agents the Company shall not, and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants shall cause its Subsidiaries and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage solicit or otherwise take any action to knowingly facilitate any inquiries or encourage the making of any proposal Acquisition Proposals or offer any inquiries, offers or proposals that constitutes, or would may reasonably be expected to lead to, any Company to an Acquisition Proposal;
, (ii) engage in or otherwise participate in any discussions or negotiations relating with any Person or Persons with respect to any Company Acquisition Proposal Proposals or any inquiry, proposal discussions or offer negotiations that would could reasonably be expected to lead to a Company an Acquisition Proposal; or
, (iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential non-public information concerning the Company or any of its Subsidiaries and promptly to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Person or Persons with the intent to initiate, solicit or knowingly encourage the making of any Acquisition Proposals, (iv) grant any waiver or release under any Standstill or similar agreement entered into by the Company, or (v) enter into any letter of intent, term sheet, acquisition agreement, merger agreement or other similar agreement (other than an Acceptable Confidentiality Agreement) relating to an Acquisition Transaction or that requires the Company to abandon, terminate all physical and electronic data access previously granted or fail to such Personconsummate the transactions contemplated by this Agreement or to breach its obligations under this Agreement (an “Alternative Acquisition Agreement”).
Appears in 1 contract
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by immediately after the Go-Shop Period End Date until the Effective Time or, if earlier, the termination of this Section 5.02Agreement in accordance with Article VIII, neither it nor any of its Subsidiaries nor any of the officers and directors of it or any of its or its Subsidiaries’ officers, directors and employees Subsidiaries shall, and that it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) respective Representatives not to, directly or indirectly:
: (iA) initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
; or (iiB) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or provide any non-public information to any Third Party with the intent to induce the making, submission or announcement of, or the intent to encourage or assist, an Acquisition Proposal. Notwithstanding the foregoing, the Company may take and continue to take any of the actions described in Section 6.2(a) and, subject to Section 6.2(c), from and after the Go-Shop Period End Date with respect to any Solicited Person that, prior to the Go-Shop Period End Date, has made a bona fide Acquisition Proposal that the Independent Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) constitutes or any inquiry, proposal or offer that would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 6.2(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Independent Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to to, a Company Superior Proposal (a “Terminated Acquisition Proposal; or
(iii) provide ”). After the Go-Shop Period End Date, other than with respect to Persons who at the Go-Shop Period End Date are Excluded Parties, and at any information or data subsequent time with respect to any Person in connection with any Company (including a formerly Excluded Party) that has made an Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to becomes a Company Terminated Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations solicitation, encouragement, discussion or negotiation with any such Person conducted heretofore theretofore by the Company, its Subsidiaries or any of their respective Representatives with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal and shall use reasonable best efforts to require such Person to promptly return or destroy (as provided in the terms of such confidentiality agreement) all any confidential information concerning previously furnished by the Company or Company, any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personor any of their respective Representatives.
Appears in 1 contract
Sources: Merger Agreement (Camelot Information Systems Inc.)
No Solicitation or Negotiation. (a) The Company agrees thatacknowledges that neither it, except as expressly permitted by this Section 5.02nor its Representatives, neither it nor is engaged in any of its Subsidiaries nor discussions or negotiations with any of its or its Subsidiaries’ officers, directors Person with respect to an Acquisition Proposal and employees shallconfirms that the Company has complied with, and it shall instruct is in current compliance with, the exclusivity obligations under that certain letter agreement, dated May 20, 2016, between Parent and use reasonable best efforts to cause the Company. The Company will not, and will not authorize or permit its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not Representatives to, directly or indirectly:
, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with the terms of Section 7: (i) solicit, initiate, solicit, facilitate or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company an Acquisition Proposal;
; or (ii) (A) furnish or disclose to any Person non-public information with respect to an Acquisition Proposal; (B) negotiate or engage in discussions with any Person with respect to an Acquisition Proposal; or otherwise participate (C) enter into or amend or grant any waiver or release under any confidentiality or non-disclosure Contract with respect to an Acquisition Proposal.
(b) The Company’s board of directors will not: (i) withdraw, amend, or modify, or propose to withdraw, modify, or qualify in a manner adverse to Parent or Merger Sub, the Board Recommendation; (ii) approve, recommend, or fail to recommend against, or propose to approve or recommend, any Acquisition Proposal; (iii) make any statement inconsistent with its recommendation that the Company Stockholders approve and adopt this Agreement and the Merger; or (iv) enter into any contract (whether or not binding) or agreement in principle with respect to any Acquisition Proposal.
(c) The Company will promptly (and in any discussions event within one Business Day after receipt thereof by such party or negotiations relating its Representatives) advise Parent in writing of any Acquisition Proposal, any request for information with respect to any Company Acquisition Proposal Proposal, or any inquiry, proposal inquiry with respect to or offer that would reasonably be expected to lead to a Company result in an Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company , the material terms and conditions of such request, Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and but excluding the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence identity of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personsame.
Appears in 1 contract
Sources: Merger Agreement (BIO-TECHNE Corp)
No Solicitation or Negotiation. The During the Pre-Closing Period, the Acquired Companies shall not, and shall use their reasonable best efforts to cause their Representatives not to: (a) solicit or knowingly encourage or facilitate the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Parent) relating to a possible Acquisition Transaction; (b) participate in any discussions or negotiations or enter into any agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent or its Representatives) relating to or in connection with a possible Acquisition Transaction; or (c) entertain or accept any proposal or offer from any Person (other than Parent) relating to a possible Acquisition Transaction. Promptly (and in any event within five (5) days) after the date of this Agreement, the Company agrees that, except as expressly permitted shall request each Person that has entered into a confidentiality or similar agreement with an Acquired Company during the twelve (12) months preceding the date of this Agreement in connection with such Person’s consideration of a possible Acquisition Transaction to return or destroy all non-public information previously furnished to such Person by this Section 5.02, neither it nor or on behalf of any of its Subsidiaries nor any the Acquired Companies, in accordance with the terms of its such confidentiality or its Subsidiaries’ officers, directors and employees shallsimilar agreement, and it the Company shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred each such Person to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection promptly comply with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalsuch request. The Company shallshall promptly (and in any event within one (1) Business Day after receipt thereof) give Parent written notice of any written or, to the Knowledge of the Company, oral inquiry, indication of interest, proposal, offer or request for non-public information (or any material amendment or update to a prior inquiry, indication, proposal, offer or request) relating to a possible Acquisition Transaction that is received by any Acquired Company or any Representative of any Acquired Company during the Pre-Closing Period. Such notice shall include the identity of the Person making or submitting such inquiry, indication of interest, proposal, offer or request, and a summary of the Company shall cause its Subsidiaries material terms and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposalconditions thereof. The Company will promptly inform the Persons referred to in the preceding sentence shall be responsible for any breach of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with 5.4 by its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of Representatives acting on its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personbehalf.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Lantheus Holdings, Inc.)
No Solicitation or Negotiation. The Subject to the terms of Section 5.3(c), from the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company agrees thatGroup will not, except as expressly permitted by this Section 5.02will cause its directors, neither it nor officers and employees not to, and will not instruct, authorize or knowingly permit any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallother Representatives to, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) will direct such Representatives not to, directly or indirectly:
, (i) solicit, initiate, solicitpropose, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of facilitate, any proposal or offer inquiry that constitutes, or would is reasonably be expected to lead to, an Acquisition Proposal;(ii) furnish to any Person (other than to Parent or any designees of Parent) any non-public information relating to the Company Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group (other than Parent or any designees of Parent), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal;
; (iiiii) participate or engage or otherwise participate in any discussions or negotiations relating with any Person with respect to any Company an Acquisition Proposal (other than informing such Persons of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal to the extent necessary to clarify the terms of the Acquisition Proposal); (iv) approve, endorse or recommend any inquiryproposal that constitutes, proposal or offer that would is reasonably be expected to lead to a Company to, an Acquisition Proposal; or
or (iiiv) provide enter into any information letter of intent, memorandum of understanding, merger agreement, acquisition agreement or data other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any Person in connection with any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). From the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shallwill cease, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and will cause to be terminated any and all discussions and or negotiations that would be prohibited by this paragraph with any Person conducted heretofore with respect and its Representatives that would be prohibited by this Section 5.3(c). Promptly following the No-Shop Period Start Date, the Company will (A) request the return or destruction of all non-public information concerning the Company Group furnished to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a any Acquisition Proposal at any time within the six month period immediately preceding the No-Shop Period Start Date, (B) cease providing any further information with respect to the Company Group or any Acquisition Proposal to return any such Person or destroy its representatives and (as provided in C) terminate all access granted to any such Person and its representatives to any physical or electronic data room. Notwithstanding anything herein to the terms of such confidentiality agreement) all confidential information concerning contrary, from the date hereof the Company will not be required to enforce, and will be permitted to waive, (i) any anti-clubbing, anti-lock-up, restrictions on engaging Representatives or working with potential financing sources (including restrictions on sharing non-public information with respect to the Company Group or any Acquisition Proposal with financing sources) or similar provision of its Subsidiaries any standstill or confidentiality agreement and promptly terminate all physical and electronic data access previously granted (ii) any provision of any standstill or confidentiality agreement solely to the extent that such Personprovision prohibits or purports to prohibit a confidential proposal being made to the Company Board.
Appears in 1 contract
Sources: Merger Agreement (Chico's Fas, Inc.)
No Solicitation or Negotiation. (a) The Company agrees thatCompany, except as expressly permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ and other affiliates and their respective officers, directors directors, representatives (including the Company Financial Advisor or any other investment banker and employees any attorneys and accountants) shall, and it the Company shall instruct and use all reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, affiliates’ respective non-officer employees with managerial responsibilities and agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in immediately cease any discussions or negotiations relating with any parties with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Third Party Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts also agrees promptly to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person person that has heretofore executed a confidentiality agreement in connection with its consideration of making a acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company Acquisition Proposal or any Subsidiary, if any, to return (or destroy (as provided in if permitted by the terms of such applicable confidentiality agreement, destroy) all confidential information concerning heretofore furnished to such person by or on behalf of the Company or any Subsidiary and, if requested by Parent, to enforce such person’s obligation to do so. Neither the Company nor any Subsidiary or other affiliates shall, nor shall the Company authorize or permit any of its Subsidiaries or their respective officers, directors or representatives to, and the Company shall use all reasonable efforts to cause its and its Subsidiaries’ and other affiliates’ respective non-officer employees with managerial responsibilities and agents not to, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with or provide any information to or enter into any agreement with any person or group (other than Parent and Acquisition or any designees of Parent and Acquisition) concerning any Third Party Acquisition Proposal; provided, however, that if the Company Board determines in good faith, after consultation with legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company’s stockholders under the DGCL, the Company may, in response to an unsolicited written Third Party Acquisition Proposal that the Company Board determines in good faith, based on consultation with the Company Financial Advisor, is from a Third Party that is capable of consummating a Superior Proposal and only for so long as the Board of Directors so determines in good faith that its actions are reasonably likely to lead to a Superior Proposal, (i) furnish only to any Third Party pursuant to a confidentiality agreement in a form substantially similar to the Nondisclosure Agreement (A) the information with respect to the Company of the same type and scope that the Company provided to Parent prior to the date hereof and (B) any such additional information that such Third Party requests, but only if the Company is permitted, and does in fact, simultaneously furnish such additional information to Parent, and (ii) participate in discussions and negotiations regarding such Third Party Acquisition Proposal; provided, further, that nothing herein shall prevent the Company Board from taking and disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender or exchange offer. The Company shall promptly terminate (and in any event within one (1) day after the Company attains knowledge thereof) (x) notify Parent in the event the Company or any Subsidiary or other affiliates or any of their respective officers, directors, employees and agents receives any Third Party Acquisition Proposal, including the terms and conditions thereof and the identity of the party submitting such proposal, and any request for confidential information made in connection with a Third Party Acquisition Proposal, (y) provide a copy of any written agreements, proposals or other materials the Company receives from any such person or group (or its representatives), and (z) promptly, and in any event within one (1) day, advise Parent of any material modifications thereto.
(b) Except as set forth in this Section 4.3(b), the Company Board shall not make a Change in the Company Recommendation or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Third Party Acquisition Proposal. Notwithstanding the foregoing, if the Company Board by a majority vote determines in its good faith judgment prior to the Company Stockholders Meeting, after consultation with outside legal counsel, that it is required to make a Change in the Company Recommendation in order to comply with its fiduciary duties, the Company Board may recommend a Superior Proposal, but only (i) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and (ii) if Parent does not, within five (5) days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Company Board by a majority vote determines in its good faith judgment (after consultation with the Company Financial Advisor or another financial advisor of nationally recognized reputation) to be at least as favorable to the Company’s stockholders as such Superior Proposal; provided, however, that no Change in the Company Recommendation shall relieve the Company of its obligation to submit this Agreement and such transactions to its stockholders for approval, as provided in Section 4.2(b). Any disclosure that the Company Board may be compelled to make with respect to the receipt of a Third Party Acquisition Proposal or otherwise in order to comply with its fiduciary duties or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Company Board in violation of this Section 4.3(b).
(c) For the purposes of this Agreement, “Third Party Acquisition Proposal” means, other than in connection with the Merger or as otherwise specifically contemplated by this Agreement, any proposal relating to (i) any merger, consolidation, share exchange, business combination, recapitalization or other similar transaction or series of related transactions involving the Company or any Subsidiary other than the Merger in which the stockholders of the Company immediately preceding such transaction hold, directly or indirectly, less than ninety percent (90%) of the equity interests in the surviving or resulting entity of such transaction or in any parent entity immediately following such transaction; (ii) any sale, lease, exchange, transfer or other disposition (including by way of merger, consolidation or exchange), in a single transaction or a series of related transactions, of the assets of the Company or any Subsidiary constituting ten percent (10%) or more of the consolidated assets of the Company or accounting for ten percent (10%) or more of the consolidated revenues of the Company; (iii) any tender offer, exchange offer or similar transactions or series of related transactions made by any person involving the Company’s common stock constituting ten percent (10%) or more of the Company’s common stock; (iv) the acquisition by any person (other than Parent or any of its affiliates) of beneficial ownership (as determined pursuant to Rule 13d-3 of the Exchange Act) or the formation of any group (as defined in Section 13(d) of the Exchange Act) to acquire beneficial ownership (as determined pursuant to Rule 13d-3 of the Exchange Act) of more than ten percent (10%) of the Company’s common stock or the common stock of any Subsidiary of the Company; or (v) any other substantially similar transaction or series of related transactions that reasonably could be expected to result in the acquisition of a controlling interest in the Company. For purposes of this Agreement, a “Third Party” means a person (which includes a “person” as such term is defined in Section 13(d)(3) of the Exchange Act) other than Parent, Acquisition or any affiliate thereof. For purposes of this Agreement, a “Superior Proposal” means any bona fide Third Party Acquisition Proposal (1) to acquire, directly or indirectly, for consideration consisting solely of cash and/or publicly-traded securities (including securities that will be publicly-traded immediately upon the consummation of such Superior Proposal), eighty-five percent (85%) of the Shares then outstanding, or all physical or substantially all of the assets of the Company, (2) that contains terms and electronic data access previously granted conditions that the Company Board by a majority vote determines in good faith (after consultation with the Company Financial Advisor or another financial advisor of nationally recognized reputation) to such Personbe more favorable to the Company’s stockholders than the Merger, (3) that the Company Board by a majority vote determines in its good faith judgment (after consultation with the Company Financial Advisor or another financial advisor of nationally recognized reputation and its legal counsel) to be reasonably capable of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal), (4) that does not contain a “right of first refusal” or “right of first offer” with respect to any counter-proposal that Parent might make, and (5) that does not contain any “due diligence” condition and for which any financing upon which it is conditioned is committed.
Appears in 1 contract
Sources: Merger Agreement (Edwards J D & Co)
No Solicitation or Negotiation. The During the Pre-Closing Period, Sellers and the Company agrees that, except as expressly permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallshall not, and it shall instruct ensure that no Acquired Company and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives no Representative of any Acquired Company or any Seller shall: (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”a) not to, directly or indirectly:
(i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries the initiation or the making submission of any expression of interest, inquiry, proposal or offer that constitutes, or would reasonably be expected from any Person (other than Purchaser) relating to lead to, any Company a possible Acquisition Proposal;
Transaction; (iib) engage or otherwise participate in any discussions or negotiations or enter into any agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Purchaser, Sellers’ Representative or their Representatives or Sellers’ counsel and advisors) relating to or in connection with a possible Acquisition Transaction; or (c) entertain or accept any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead from any Person (other than Purchaser) relating to a possible Acquisition Transaction. Promptly (and in any event within five (5) days) after the date of this Agreement, the Company Acquisition Proposal; or
shall request each Person (iiiother than any Seller or Sellers’ Representative) provide any information that has entered into a confidentiality or data to any Person similar agreement with an Acquired Company during the twelve (12) months preceding the date of this Agreement in connection with such Person’s consideration of a possible Acquisition Transaction to return or destroy all Confidential Information previously furnished to such Person by or on behalf of any Company Acquisition Proposal of the Acquired Companies, in accordance with the terms of such confidentiality or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shallsimilar agreement, and the Company shall cause its Subsidiaries and use its commercially reasonable best efforts to cause its Representatives to, immediately cease and cause each such Person to be terminated any discussions and negotiations promptly comply with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposalsuch request. The Company will shall promptly inform (and in any event within one (1) Business Day after receipt thereof) give Purchaser written notice of any written or, to the Persons referred Knowledge of the Company, oral inquiry, indication of interest, proposal, offer or request for non-public information relating to a possible Acquisition Transaction that is received by any Acquired Company, any Seller or any Representative of any Acquired Company or Seller during the Pre-Closing Period. Such notice shall include the identity of the Person making or submitting such inquiry, indication of interest, proposal, offer or request, and the material terms and conditions thereof, subject, in the preceding sentence case of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration disclosure of making a Company Acquisition Proposal to return or destroy (as provided in the terms identity of such Person, to any confidentiality agreement) all confidential information concerning obligations existing at the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such PersonAgreement Date.
Appears in 1 contract
No Solicitation or Negotiation. As soon as reasonably practicable (and in any event within one Business Day) after the date of this Agreement, the Company shall deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making an Acquisition Proposal within the twelve months prior to the date of this Agreement, to the effect that the Company is requesting the prompt return or destruction of all confidential information concerning the Company and its Subsidiaries in such Person’s possession or control. The Company shall, and within one Business Day following the date hereof, shall cause its Subsidiaries to, terminate access by any third Person who has made or could reasonably be expected to make an Acquisition Proposal (other than Parent and its Representatives) to any data room (virtual or actual) containing any confidential information of the Company or any of its Subsidiaries. The Company and its Subsidiaries will, and will cause their Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal as of the date hereof. During the Pre-Closing Period, the Company agrees that, except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shall, and it they shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) their respective Representatives not to, directly or indirectly:
(i) initiate, solicit, propose or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or provide any nonpublic information or data to any Company Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company an Acquisition ProposalProposal (other than to state that the terms of this Section 6.2 prohibit such discussions); or
(iii) provide any information or data furnish to any Person in connection with any Company Acquisition Proposal (other than Parent or any inquiry, proposal or offer that would reasonably be expected of its Affiliates) any non-public information relating to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and promptly terminate all physical and electronic data access previously granted its Subsidiaries, in any such case with the intent to such Personinduce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal.
Appears in 1 contract
No Solicitation or Negotiation. The Company agrees thatDuring the Pre-Closing Period, except as expressly permitted by this Section 5.026.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallthe Company shall not, and it the Company shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers and employees not to, and shall cause its and their respective investment bankers, attorneys, accountants and other advisors, agents and or representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not toto not, directly or indirectly:
(i) solicit, initiate, solicitinduce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating or cooperate in any way with any Person regarding any proposal or offer the consummation of which would constitute a Company Acquisition Proposal;
(iii) provide any information or data concerning the Company or any of its Subsidiaries to any Person in connection with any proposal the consummation of which would constitute a Company Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Company Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to a Company Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal; or;
(iiiv) provide adopt, approve or recommend or make any information public statement approving or data to any Person in connection with any Company Acquisition Proposal or recommending any inquiry, proposal or offer that would constitutes, or could reasonably be expected to lead to to, a Company Acquisition ProposalProposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any Person (other than Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Company’s organizational or other governing documents; or
(ivvi) otherwise knowingly facilitate resolve, publicly propose or agree to do any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would could reasonably be expected to lead to a Company Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. The As soon as reasonably practicable after the date of this Agreement, the Company will promptly inform the Persons referred shall deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Acquisition Proposal within the last 90 days, to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Company Acquisition Proposal, effective on the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted furnished to such Person.
Appears in 1 contract
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.026.2, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, neither it nor any of its Subsidiaries nor any of the officers and directors of it or any of its or its Subsidiaries’ officers, directors and employees Subsidiaries shall, and that it shall instruct and use its reasonable best efforts to instruct and cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
(i) initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or provide any non-public information to any Company Acquisition Proposal or Person relating to, any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company an Acquisition Proposal. The Company shall, and Notwithstanding the Company shall cause its Subsidiaries and use its reasonable best efforts foregoing but subject to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations the Company’s compliance in all material respects with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence other provisions of the obligations undertaken in this Section 5.02. The 6.2, if at any time prior to obtaining the Requisite Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning Vote the Company or any of its Representatives receives a bona fide written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal did not result from any breach of this Section 6.2 and the board of directors of the Company reasonably determines in good faith, after consultation with the Company’s outside legal counsel and financial advisor, that (A) such Acquisition Proposal may constitute or is reasonably expected to become a Superior Proposal, and (B) with respect to such written Acquisition Proposal, that the failure to take the actions set forth in the following clauses (1) and (2) of this Section 6.2 would be reasonably likely to be inconsistent with its fiduciary duties under Law, then the Company and its Representatives may (1) furnish, pursuant to an appropriate confidentiality agreement, non-public information with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Acquisition Proposal; provided, that the Company shall, substantially concurrently (and promptly terminate all physical and electronic data access previously granted in any event within 48 hours) with providing written non-public information to such Person, provide to the Controlling Shareholder any such written non-public information which was not previously provided to Controlling Shareholder or its Affiliates and (2) engage in or otherwise participate in discussions or negotiations with such Person or group of Persons with respect to such written Acquisition Proposal; provided that as promptly as reasonably practicable following the Company taking any of the actions (and in any event within 48 hours thereof) described in clauses (1) and (2) above, the Company shall (x) provide written notice to Controlling Shareholder of the determination(s) of the board of directors of the Company provided above and (y) furnish to the Controlling Shareholder a true and correct copy of any confidentiality or other agreement entered into with such Person or group of Persons.
Appears in 1 contract
No Solicitation or Negotiation. The Company agrees that, except as expressly permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees the Company Subsidiary shall, and it the Company shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not the Company Representatives to, directly or indirectly:
(i) immediately cease any discussions or negotiations with any Persons with respect to an Acquisition Proposal (1) if the Company does not exercise or is not entitled to exercise the Go-Shop Extension Period at 12:00 a.m (Eastern Time) on April 1, 2013 and (2) if the Company exercises the Go-Shop Extension Period at 12:00 a.m. (Eastern Time) on April 11, 2013 (but only with respect to Excluded Parties for such additional ten (10) calendar day period beyond the Go-Shop Period) (as applicable, the “No-Shop Period Start Date”); and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1 (“Termination”), not (A) initiate, solicit, propose or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutescould constitute an Acquisition Proposal, (B) engage in, enter into, continue or otherwise participate in any discussions or negotiations regarding or that would reasonably be expected to lead to, or provide any non-public information or data concerning the Company or the Company Subsidiary to any Person or group of Persons relating to, any Acquisition Proposal;
, (iiC) engage otherwise cooperate with or otherwise assist or participate in in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make an Acquisition Proposal, (D) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar agreement relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company an Acquisition Proposal, or proposal that would reasonably be expected (E) resolve to lead propose, agree or publicly announce an intention to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence do any of the obligations undertaken in this Section 5.02foregoing. The Following the No-Shop Period Start Date, the Company will shall promptly request from each Person (other than an Excluded Party) that has executed a confidentiality agreement in connection with its consideration of making a Company possible Acquisition Proposal to return or destroy (as provided in accordance with the terms of such confidentiality agreement) agreement all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted heretofore furnished to such PersonPerson by or on behalf of the Company.
Appears in 1 contract
Sources: Merger Agreement (Iparty Corp)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.2 (including Section 6.2(c)) and except as may relate to any Excluded Party, neither it nor the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall cause the Company Representatives to, (i) at 12:00 a.m. (Nashville time) on the 31st calendar day after the date of the Prior Agreement (the “No-Shop Period Start Date”) immediately cease and terminate any solicitation, encouragement (including by way of providing access to non-public information or the business, properties, assets or personnel of the Company or any of its Subsidiaries nor to any of Person and its Representatives, its Affiliates and its prospective equity and debt financing sources), discussions or its Subsidiaries’ officersnegotiations (or any other actions permitted by Section 6.2(a)) with any Persons that may be ongoing with respect to any inquiry, directors and employees shallproposal or Acquisition Proposal, and it as promptly as practicable thereafter deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any inquiry, proposal or Acquisition Proposal, effective immediately, which notice shall instruct and use reasonable best efforts also request such Person to cause its return or destroy promptly all confidential information concerning the Company and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents the Company shall take all reasonably necessary actions to secure its rights and representatives (a ensure the performance of any such Person’s directorsobligations under any applicable confidentiality agreement (including enforcement of any applicable standstill provision), officersand (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or the termination of this Agreement in accordance with ARTICLE VIII, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
indirectly (iA) initiate, solicit, knowingly facilitate or knowingly encourage (publicly or otherwise knowingly facilitate otherwise) (including by way of providing access to non-public information or the business, properties, assets or personnel of the Company or any of its Subsidiaries to any Person and its Representatives and its Affiliates) any inquiries regarding, or the making making, submission or announcement of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company to an Acquisition Proposal;
, (iiB) engage or enter into, continue or otherwise participate in any discussions or negotiations relating with respect to, or provide any non-public information or data concerning, the Company or its Subsidiaries to any Company Person relating to, or that would reasonably be expected to lead to, any Acquisition Proposal or otherwise cooperate with or assist or participate in, or knowingly facilitate such inquiries, proposals, discussions or negotiations, (C) grant to any inquiryPerson any waiver, proposal amendment or release under any standstill or confidentiality agreement, the Rights Agreement or any Takeover Statute (in each case, other than (if the Board first determines that the failure to take such action would be inconsistent with the Company directors’ fiduciary duties under Applicable Law) a limited waiver, amendment or release thereunder for the sole purpose of allowing any Person or Group to make an Acquisition Proposal or an offer that would reasonably be expected to lead to a Company an Acquisition Proposal; or
) or (iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(ivD) otherwise knowingly facilitate any such inquiries, proposals, discussion or negotiations or any effort or attempt by any Person to make a Company an Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated A breach by any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, Subsidiary or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence Representative of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries of this Section 6.2 shall constitute a breach by the Company of this Section 6.2. Within twenty-four (24) hours following the No-Shop Period Start Date, the Company will notify Parent of the number and promptly terminate all physical identity of Excluded Parties and, subject to the ability of the Company to make a Recommendation Withdrawal pursuant to and electronic data access previously granted to such Personin accordance with this Section 6.2, the Company’s Board of Directors shall publicly expressly reaffirm the Company Board Recommendation.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Fidelity National Financial, Inc.)
No Solicitation or Negotiation. The Company agrees thatBetween the date hereof and the Closing Date, except as expressly permitted by this Section 5.02, neither it the Shareholders shall not (nor shall the Shareholders permit Endan or the Subsidiaries or any of its Subsidiaries nor any of its Endan's or its the Subsidiaries’ 's officers, directors and employees directors, employees, agents, representatives, or affiliates or cause any person on behalf of the Shareholders to) other than in accordance with this Agreement, initiate, entertain or encourage any proposals or offers from, or conduct discussions with or engage in negotiations with, or provide information to any person relating to, or execute, consummate or close any possible acquisition of Endan or the Subsidiaries, whether by way of merger, purchase of shares, purchase of assets or otherwise. Each Shareholder shall, and it shall instruct cause Endan and use reasonable best efforts the Subsidiaries to, promptly notify DSI in the event it receives any proposal or inquiry from a third party concerning a proposed acquisition of Endan or the Subsidiaries, including the terms and conditions thereof and the identity of the party submitting such proposal, and shall advise DSI from time to cause its time of the status and its Subsidiaries’ investment bankersany material developments concerning the same. Between the date hereof and the Closing Date, attorneysDSSI shall not (nor shall DSSI permit DSI or the DSI Subsidiaries or any of DSI's or DSSI' officers, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankersagents, attorneysrepresentatives, accountants and or affiliates or cause any person on behalf of DSSI to) other advisorsthan in accordance with this Agreement, agents and representatives are hereinafter referred initiate, entertain or encourage any proposals or offers from, or conduct discussions with or engage in negotiations with, or provide information to as its “Representatives”) not any person relating to, directly or indirectly:
(i) initiateexecute, solicit, knowingly encourage consummate or otherwise knowingly facilitate close any inquiries possible acquisition of DSI or the making DSI Subsidiaries, whether by way of merger, purchase of shares, purchase of assets or otherwise. DSSI shall, and it shall cause DSI and the DSI Subsidiaries to, promptly notify Endan in the event it receives any proposal or offer that constitutesinquiry from a third party concerning a proposed acquisition of DSI or the DSI Subsidiaries, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iii) provide any information or data to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shallincluding the terms and conditions thereof and the identity of the party submitting such proposal, and the Company shall cause its Subsidiaries and use its reasonable best efforts advise Endan from time to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence time of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information status and any material developments concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personsame.
Appears in 1 contract
Sources: Share Purchase Agreement (Data Systems & Software Inc)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.4, neither it nor any from the date hereof until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall not, and shall cause each of its Subsidiaries nor any of and its or its Subsidiaries’ officers, directors and employees shalltheir respective officers and directors, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and respective other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
, (i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any inquiry, proposal or offer or the making, submission or announcement of any inquiry, proposal or offer, that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Takeover Proposal;
, or (ii) engage in, continue or otherwise participate in any discussions or negotiations relating regarding, or furnish to any Company Acquisition Proposal other Person any information for the purpose of encouraging or facilitating, any inquiry, proposal or offer that would constitutes, or could reasonably be expected to lead to to, a Company Acquisition Proposal; or
Takeover Proposal (iii) provide any information or data other than, in response to any an unsolicited bona fide inquiry that did not arise from a material breach of this Section 6.4(a), solely for the purpose of obtaining clarification from the Person in connection making such Company Takeover Proposal of the terms of such Company Takeover Proposal and facts about the Person that made it and only if failing to do so would be inconsistent with any the Company Acquisition Proposal or any inquiryBoard’s fiduciary duties, proposal or offer that would reasonably be expected and to lead refer the inquiring Person to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalthis Section 6.4). The Company shall, and the Company shall cause its Subsidiaries Subsidiaries, and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately after the execution and delivery of this Agreement, cease any and cause to be terminated any all existing solicitation, discussions and or negotiations with any Person conducted heretofore Persons (or provision of any non-public information to any Persons) with respect to any Company Acquisition Proposalinquiry, proposal or offer that constitutes, or proposal that would could reasonably be expected to lead to to, a Company Acquisition Takeover Proposal. The Within three (3) Business Days following the date hereof, the Company will promptly inform the Persons referred to shall (A) request in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from writing that each Person that has heretofore executed a confidentiality agreement agreement, in connection with its consideration of making a Company Acquisition Takeover Proposal or potential Company Takeover Proposal promptly destroy or return to return the Company all non-public information heretofore furnished by the Company or destroy (as provided any of its Representatives to such person or any of its Representatives in accordance with the terms of such confidentiality agreementagreement and (B) all confidential information concerning terminate access to any physical or electronic data rooms relating to a possible Company Takeover Proposal by such Person and its Representatives. The Company shall enforce, and not waive, terminate or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill or other agreement (if any) to which the Company is a party, in each case, that prohibits or purports to prohibit a proposal being made to the Company Board. For the avoidance of doubt, any violation of the restrictions set forth in this Section 6.4(a) by a Subsidiary of the Company, any director or officer of the Company or any of its Subsidiaries or any of the Company’s or its Subsidiaries’ Representatives acting on the Company’s behalf and promptly terminate all physical and electronic data access previously granted to such Personretained in connection with the Transactions shall be deemed a breach of this Section 6.4(a) by the Company.
Appears in 1 contract
Sources: Merger Agreement (Meritor, Inc.)
No Solicitation or Negotiation. The Company agrees thatFrom and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 8.1, and except as expressly permitted by otherwise specifically provided for in this Section 5.025.3, neither it nor any the Company shall not, shall cause each of the Company Subsidiaries and its Subsidiaries nor any of its or its Subsidiaries’ and their respective officers, directors and employees shallnot to, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and their respective other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
(i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries inquiry regarding, or the making submission of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company Acquisition a Competing Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating regarding, or furnish to any Company Acquisition Person any information or data with respect to, or knowingly cooperate in any way with any Person (whether or not such Person is making a Competing Proposal) with respect to any Competing Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Competing Proposal; or
(iii) provide take any information action to exempt any Person (other than Parent and the Parent Subsidiaries) from the restrictions on "business combinations" or data any similar provision contained in any applicable Takeover Statute or the Company Governing Documents. The Company shall, shall cause each of the Company Subsidiaries and its and their respective officers, directors and employees to, and shall use its reasonable best efforts to cause its and their respective other Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to any Person in connection with any Company Acquisition Competing Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any Person that has executed a confidentiality or non-disclosure agreement in connection with any such Competing Proposal or potential Competing Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such Person or its Representatives in accordance with the terms of such confidentiality or non-disclosure agreement. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiaries and its and their respective Representatives may in response to a bona fide, written Competing Proposal (A) seek to clarify and understand the terms and conditions of any such Competing Proposal (or amended proposal) solely to determine whether such Competing Proposal constitutes or would reasonably be expected to lead to a Company Acquisition Proposal; or
Superior Proposal and (ivB) otherwise knowingly facilitate any effort or attempt to make inform a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement made any such Competing Proposal of the provisions of this Section 5.3, in each case, so long as the Company, the Company Subsidiaries and such Representatives otherwise comply with this Section 5.3 in connection with its consideration of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Persontherewith.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Kythera Biopharmaceuticals Inc)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.4, neither it nor any from the No-Shop Period Start Date (or, with respect to an Excluded Party, from 11:59 p.m. New York City time on the tenth (10th) day following the No-Shop Period Start Date) (the tenth (10th) day, the “Cut-Off Time”) until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall not, and shall cause each of its Subsidiaries nor any of and its or its Subsidiaries’ officers, directors and employees shalltheir respective officers and directors, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
, (i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate any proposal or offer or any inquiries or regarding the making of any proposal or offer, including any proposal or offer to its stockholders, that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, or (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information in connection with or for the purpose of encouraging or facilitating, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
Takeover Proposal (iiiother than, in response to an unsolicited inquiry that did not arise from a breach of Section 6.4(b) provide (other than any information or data breach that is both immaterial and unintentional), solely to any ascertain facts from the Person in connection making such Company Takeover Proposal consistent with any its fiduciary duties about such Company Acquisition Takeover Proposal or any inquiryand the Person that made it, proposal or offer that would reasonably be expected solely to lead refer the inquiring Person to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalthis Section 6.4). The Company shall, and the Company shall cause its Subsidiaries Subsidiaries, and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately after the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Time) cease any and cause to be terminated any all existing solicitation, discussions and or negotiations with any Person conducted heretofore Persons (or provision of any nonpublic information to any Persons) with respect to any Company Acquisition Proposalinquiry, proposal or offer that constitutes, or proposal that would reasonably be expected to lead to to, a Company Acquisition Takeover Proposal. The Company will promptly inform the Persons referred to , except as set forth in the preceding last sentence of the obligations undertaken in this Section 5.026.4(b). The Within five (5) Business Days following the No-Shop Period Start Date (or, with respect to an Excluded Party, within five (5) Business Days after the Company will promptly Stockholder Approval has been obtained), the Company shall (A) request from in writing that each Person that has heretofore executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Takeover Proposal or potential Company Takeover Proposal promptly destroy or return to return or destroy (as provided in the terms of such confidentiality agreement) Company all confidential nonpublic information concerning heretofore furnished by the Company or any of its Subsidiaries Representatives to such person or any of its Representatives in accordance with the terms of such confidentiality agreement and promptly (B) terminate all access to any physical and or electronic data access previously granted rooms relating to a possible Company Takeover Proposal by such PersonPerson and its Representatives. Notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to engage in the activities described in clauses (ii) and (iii) of Section 6.4(a) (subject to compliance with the terms thereof) with respect to any Excluded Party, including with respect to any amended or modified Company Takeover Proposal submitted by any Excluded Party following the No-Shop Period Start Date until obtaining the Company Stockholder Approval, and the restrictions in this Section 6.4(b) shall not apply with respect thereto.
Appears in 1 contract
Sources: Merger Agreement (Presidio, Inc.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.3, neither it nor any of Parent shall not, and shall cause its Subsidiaries nor any of and its or its Subsidiaries’ officersand their respective directors, directors officers and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectlyand shall instruct, and use its commercially reasonable efforts to cause, its and their respective Representatives not to:
(i) solicit, initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company a Parent Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to with any Company Acquisition Proposal or Person regarding any inquiry, proposal or offer that would reasonably be expected to lead to a Company Parent Acquisition Proposal; or;
(iii) provide any non-public information or data concerning the Parent or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Parent Acquisition Proposal; or
(iv) otherwise knowingly facilitate enter into any effort letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, lease agreement or attempt other agreement (other than a confidentiality agreement referred to make in Section 6.3(b) entered into in compliance with this Section 6.2(a)) relating to any Parent Acquisition Proposal (a Company “Parent Alternative Acquisition ProposalAgreement”). The Company Parent shall, and the Company Parent shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, (A) immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Parent Acquisition Proposal, or proposal that could reasonably be expected to lead to a Parent Acquisition Proposal, (B) promptly (and, in any event, within twenty-four (24) hours of the execution of this Agreement) terminate access by any third Person to any physical or electronic data room relating to any Parent Acquisition Proposal, or any proposal that could reasonably be expected to lead to a Parent Acquisition Proposal, and (C) except as otherwise directed by the Company, promptly (and, in any event, within seventy-two (72) hours of the execution of this Agreement) request the prompt return or destruction of any confidential information provided to any third Person within the nine (9) months immediately preceding the date of this Agreement in connection with any Parent Acquisition Proposal, or any proposal that would reasonably be expected to lead to a Company Parent Acquisition Proposal. The Notwithstanding any provision of this Section 6.2(a) to the contrary, Parent shall not grant any waiver or release under, or fail to enforce, any standstill or similar agreement; provided that, prior to the time the Parent Shareholder Approval is obtained, the foregoing shall not restrict Parent from permitting a Person to request the waiver of a “standstill” or similar obligation or from granting such a waiver, in each case, if the Parent’s board of directors determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. Parent shall provide written notice to the Company will promptly inform of any waiver or release of any standstill by Parent, including the Persons referred to in the preceding sentence disclosure of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed identity of the party thereto and a confidentiality agreement in connection with its consideration summary of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personmaterial circumstances related thereto.
Appears in 1 contract
Sources: Merger Agreement (Univar Inc.)
No Solicitation or Negotiation. The Company agrees thatDuring the Pre-Closing Period, except as expressly permitted by this Section 5.025.2, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors and employees shallthe Company shall not, and it the Company shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers and employees not to, and shall cause its and their respective investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s collectively, along with such directors, officers, officers and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, solicitinduce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL) any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any way with any Person regarding any Company Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal; or;
(iii) provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person in connection with with, or for the purpose of soliciting, initiating, inducing, encouraging or facilitating, any Company Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to, or that could reasonably be expected to lead to, a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement entered into in accordance with Section 5.2(b));
(v) adopt, approve, declare advisable or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(vi) take any action or exempt any Person (other than Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Company’s organizational or other governing documents; or
(ivvii) otherwise knowingly facilitate resolve, publicly propose or agree to do any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or inquiry, proposal or offer that would could reasonably be expected to lead to a Company Acquisition Proposal and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Company Acquisition Proposal. The Company will promptly inform shall (i) as soon as reasonably practicable after the Persons referred date of this Agreement (and in all events no later than three Business Days), deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Acquisition Proposal within the last 12 months, to the effect that the Company is ending all discussions and negotiations with such Person with respect to any such Company Acquisition Proposal effective as of the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning previously furnished to such Person by or on behalf of the Company relating to any Company Acquisition Proposal (and the Company shall use its commercially reasonable efforts to have such information returned or any of its Subsidiaries destroyed) and promptly immediately terminate all physical and electronic data room access previously granted to any such Personparty or its Representatives and (ii) commencing on the date of this Agreement, prohibit any third party (other than Parent and its Representatives) from having access to any physical or electronic data room relating to any possible Company Acquisition Proposal. The Company shall use its commercially reasonable efforts to enforce the terms of each confidentiality agreement, and its rights under the provisions of any “standstill” agreement, with any such Person (other than Parent). The Company shall not grant any waiver of, or agree to any amendment or modification to, or release any such Person from, any such agreement, to permit such Person to submit a Company Acquisition Proposal, unless in any such case the Company Board shall have determined, in good faith, after consultation with outside legal counsel, that the failure to take such actions would be inconsistent with the fiduciary duties of the Company Board to the holders of Shares under applicable Law.
Appears in 1 contract
Sources: Merger Agreement (SomaLogic, Inc.)
No Solicitation or Negotiation. The Company agrees thatDuring the Pre-Closing Period, except as expressly permitted by this Section 5.025.3, neither it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers, directors Parent and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankersdirectors and officers shall not, attorneys, accountants and other advisors, agents shall not direct any of its and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not their respective Representatives to, directly or indirectly:
(i) solicit, initiate, solicitknowingly induce, knowingly encourage or otherwise knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL), any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company a Parent Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to or cooperate in any Company Acquisition Proposal or way with any inquiry, Person regarding any proposal or offer that the consummation of which would reasonably be expected to lead to constitute a Company Parent Acquisition Proposal; or;
(iii) provide any information or data concerning Parent or any of its Subsidiaries to any Person in connection with any Company proposal the consummation of which would constitute a Parent Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Parent Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to a Parent Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Parent Acquisition Proposal;
(v) adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that would constitutes, or could reasonably be expected to lead to to, a Parent Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL); take any action or exempt any Person (other than the Company Acquisition Proposaland its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or the Parent’s organizational or other governing documents; or
(ivvi) otherwise knowingly facilitate resolve, publicly propose or agree to do any effort or attempt to make a Company Acquisition Proposalof the foregoing. The Company Parent shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Company Parent Acquisition Proposal, or proposal that would could reasonably be expected to lead to a Company Parent Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Parent Acquisition Proposal. The Company will promptly inform As soon as reasonably practicable after the Persons referred date of this Agreement, Parent shall deliver a written notice to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed entered into a confidentiality agreement in connection with its consideration anticipation of potentially making a Company Parent Acquisition Proposal within the last 30 days, to the effect that Parent is ending all discussions and negotiations with such Person with respect to any Parent Acquisition Proposal, effective on the date hereof and requesting the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted furnished to such Person. Parent shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between Parent and any Person (other than the Company), and, subject to Section 5.3(b), shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such Person to submit a Parent Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Metacrine, Inc.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.2, neither it nor any of the Company shall not, and shall cause its Subsidiaries nor any of and its or its Subsidiaries’ officersand their respective directors, directors officers and employees shall, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectlyand shall instruct, and use its commercially reasonable efforts to cause, its and their respective Representatives not to:
(i) solicit, initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any a Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to with any Person regarding any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or;
(iii) provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate enter into any effort letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, lease agreement or attempt other agreement (other than a confidentiality agreement referred to make a in Section 6.2(b) entered into in compliance with this Section 6.2(a)) relating to any Company Acquisition ProposalProposal (a “Company Alternative Acquisition Agreement”). The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, (A) immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that could reasonably be expected to lead to a Company Acquisition Proposal, (B) promptly (and, in any event, within twenty-four (24) hours of the execution of this Agreement) terminate access by any third Person to any physical or electronic data room relating to any Company Acquisition Proposal, or any proposal that could reasonably be expected to lead to a Company Acquisition Proposal, and (C) except as otherwise directed by Parent, promptly (and, in any event, within seventy-two (72) hours of the execution of this Agreement) request the prompt return or destruction of any confidential information provided to any third Person within the nine (9) months immediately preceding the date of this Agreement in connection with any Company Acquisition Proposal, or any proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Notwithstanding any provision of this Section 6.2(a) to the contrary, the Company will promptly inform shall not grant any waiver or release under, or fail to enforce, any standstill or similar agreement; provided that, prior to (1) the Persons referred to time the Support Agreements are delivered and executed in accordance with Section 6.4(a) or (2) in the preceding sentence event of a Company Shareholder Meeting Election following a Support Agreement Failure, the obligations undertaken time the Company Shareholder Approval is obtained, the foregoing shall not restrict the Company from permitting a Person to request the waiver of a “standstill” or similar obligation or from granting such a waiver, in this Section 5.02each case, if the Company’s board of directors determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. The Company will promptly request from each Person that has executed shall provide written notice to Parent of any waiver or release of any standstill by the Company, including the disclosure of the identity of the party thereto and a confidentiality agreement in connection with its consideration summary of making a Company Acquisition Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personmaterial circumstances related thereto.
Appears in 1 contract
Sources: Merger Agreement (Univar Inc.)
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.2, neither it nor any of the Company shall not, and shall cause its Subsidiaries nor any of and its or its Subsidiaries’ officersand their respective directors, directors officers and employees shallnot to, and it shall instruct and use its commercially reasonable best efforts to cause its and its Subsidiaries’ their respective investment bankers, attorneys, accountants and other advisors, agents and advisors or representatives (a Person’s directorscollectively, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) not to, directly or indirectly:
: (i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate or assist any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Company an Acquisition Proposal;
; (ii) participate or engage or otherwise participate in any discussions or negotiations relating with any Person regarding any Acquisition Proposal; (iii) provide any non-public information concerning the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, record or other non-public information, or to any personnel, of the Company Acquisition Proposal or any inquiryof its Subsidiaries, in any such case with the intent to knowingly induce the making, submission or announcement of, or knowingly encourage or knowingly facilitate or assist any inquiries or the making of any proposal or offer that would constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (iv) approve, adopt, endorse, declare advisable or recommend (or publicly propose to do any of the foregoing with respect to) any proposal that constitutes or could reasonably be expected to lead to a Company an Acquisition Proposal; or
or (iiiv) provide other than an Acceptable Confidentiality Agreement, enter into any information letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or data other Contract (whether binding or non-binding, oral or written, preliminary or definitive) relating to an Acquisition Transaction (any Person such letter of intent, memorandum of understanding, agreement in connection with any Company principle, acquisition agreement, merger agreement, or other Contract, an “Alternative Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition ProposalAgreement”). The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, (A) immediately cease and cause to be terminated any discussions and negotiations with any Person (other than Parent, Merger Sub and their Representatives) conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would could reasonably be expected to lead to a Company an Acquisition Proposal, (B) promptly (and, in any event, within four (4) Business Days) terminate all access granted to any Person (other than Parent, Merger Sub and their Representatives) to any physical or electronic dataroom, in each case with respect to an Acquisition Proposal and (C) promptly (and, in any event, within four (4) Business Days) deliver written notice to each such Person requesting that such Person (other than Parent, Merger Sub and their Representatives) promptly return or destroy all confidential information regarding the Company and its Subsidiaries furnished to any such Person in accordance with the applicable confidentiality agreement between the Company and such Person; provided that the foregoing shall not restrict the Company from permitting a Person to request the waiver of a “standstill” or similar obligation or from granting such a waiver, in each case, to the extent both (1) permitting such request or granting such waiver is necessary for the Company’s board of directors to comply with fiduciary duties under applicable Law and (2) such standstill or similar obligation prevents a confidential proposal from being made to the Company’s board of directors. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Proposal to return or destroy shall not (i) except as provided in Section 4.13(b) or Section 6.21, terminate (or permit the terms termination of), waive or amend, or grant any exemptions under, the Preservation Plan, (ii) redeem any Company Rights under the Preservation Plan or (iii) take any action with respect to, or make any determination under, the Preservation Plan that would interfere with the consummation of the transactions contemplated by this Agreement, in each case of clauses (i) – (iii), without the prior written consent of Parent (such confidentiality agreement) all confidential information concerning the Company consent not to be unreasonably withheld, conditioned or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Persondelayed).
Appears in 1 contract
No Solicitation or Negotiation. The Subject to the terms of Section 5.3(b), during the period commencing on the date of the Original Agreement (the “No-Shop Period Start Date”) and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company agrees thatwill, except as expressly permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of its or and will cause its Subsidiaries’ officers, directors directors, officers and employees shallto, and it shall instruct and will use its reasonable best efforts to cause its consultants, agents, representatives and advisors (collectively with its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, directors and employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) to promptly (w) cease and cause to be terminated any solicitations, facilitation, discussions or negotiations with any Person (other than Parent, Merger Sub and their Representatives and Financing Sources) and such Person’s Representatives and financing sources in connection with any Acquisition Proposal or any other proposal, offer, inquiry or request that constitutes, or would reasonably be expected to result in, an Acquisition Proposal, (x) request the prompt return or destruction of all non-public information concerning the Company Group theretofore furnished to any such Person with whom a confidentiality agreement was entered into, in connection with its consideration of an Acquisition Transaction or Acquisition Proposal or furnished to such Person’s Representatives or financing sources, (y) cease providing any further information with respect to the Company Group or any Acquisition Proposal to any such Person or its Representatives or financing sources and (z) terminate all access granted to any such Person and its Representatives or financing sources to any physical or electronic data room. Subject to the terms of Section 5.3(b), from the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company Group will not, and will cause its Subsidiaries, officers, directors and employees not to, and will use its reasonable best efforts to cause all of its other Representatives not to, directly or indirectly:
, (i) solicit, initiate, solicitpropose or induce the making, submission or announcement of, or knowingly encourage encourage, facilitate or otherwise knowingly facilitate any inquiries or the making of assist, any proposal or offer inquiry that constitutes, or would reasonably be expected to lead to, any Company an Acquisition Proposal;
; (ii) engage furnish to any Person (other than to Parent, Merger Sub and their Representatives and Financing Sources) any non-public information relating to the Company Group or otherwise participate afford to any Person (other than Parent, Merger Sub, and their Representatives and Financing Sources) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group, in any discussions such case with the intent to, or negotiations relating to as would reasonably be expected to, solicit or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any Company proposal or inquiry that constitutes an Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company an Acquisition Proposal; or
(iii) provide any information participate or data to engage in discussions or negotiations with any Person (other than Parent, Merger Sub and their Representatives and Financing Sources) in connection with any Company a manner to induce, encourage or facilitate an Acquisition Proposal (except, in each case, to notify such Person that the provisions of this Section 5.3(a) prohibit any such discussions or negotiations); (iv) approve, endorse or recommend any inquiryproposal that constitutes an Acquisition Proposal; (v) enter into any letter of intent, proposal memorandum of understanding, merger agreement, acquisition agreement or offer other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement permitted by Section 5.3(b) (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”); or (vi) authorize or commit to do any of the foregoing. From the date of the Original Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will not be required to enforce, and will, if requested, be permitted to waive, any provision of any standstill or confidentiality agreement to permit such Person to make an Acquisition Proposal privately and confidentially to the Special Committee, in each case, solely to the extent that the Special Committee has determined in good faith (after consultation with its outside legal counsel) that the failure to do so would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. The Company will promptly inform the Persons referred to in the preceding sentence of the obligations undertaken in this Section 5.02. The Company will promptly request from each Person that has executed a confidentiality agreement in connection inconsistent with its consideration of making a Company Acquisition Proposal fiduciary duties pursuant to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to such Personapplicable Law.
Appears in 1 contract
No Solicitation or Negotiation. The Company agrees that, except Except as expressly permitted by this Section 5.026.4, neither it nor any from the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall not, and shall cause each of its Subsidiaries nor any of and its or its Subsidiaries’ officers, directors and employees shalltheir respective officers and directors, and it shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents and representatives are hereinafter referred to as its “Representatives”) Representatives not to, directly or indirectly:
, (i) solicit, initiate, solicit, or knowingly encourage or otherwise knowingly facilitate any proposal or offer or any inquiries or regarding the making of any proposal or offer, including any proposal or offer to its stockholders, that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, or (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information in connection with or for the purpose of encouraging or facilitating, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) engage or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal; or
Takeover Proposal (iiiother than, in response to an unsolicited inquiry that did not arise from a breach of Section 6.4(b) provide (other than any information or data breach that is both immaterial and unintentional), solely to any ascertain facts from the Person in connection with any making such Company Acquisition Takeover Proposal or any inquiry, proposal or offer required by its fiduciary duties about such Company Takeover Proposal and the Person that would reasonably be expected to lead to a Company Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make a Company Acquisition Proposalmade it). The Company shall, and the Company shall cause its Subsidiaries Subsidiaries, and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately after the No-Shop Period Start Date cease any and cause to be terminated any all existing solicitation, discussions and or negotiations with any Person conducted heretofore Persons (or provision of any nonpublic information to any Persons) with respect to any Company Acquisition Proposalinquiry, proposal or offer that constitutes, or proposal that would reasonably be expected to lead to to, a Company Acquisition Takeover Proposal. The Company will promptly inform the Persons referred to , except as set forth in the preceding last sentence of the obligations undertaken in this Section 5.026.4(b). The Within four (4) Business Days following the No-Shop Period Start Date, the Company will promptly shall (A) request from in writing that each Person that has heretofore executed a confidentiality agreement in connection with its consideration of making a Company Acquisition Takeover Proposal or potential Company Takeover Proposal promptly destroy or return to return or destroy (as provided in the terms of such confidentiality agreement) Company all confidential nonpublic information concerning heretofore furnished by the Company or any of its Subsidiaries Representatives to such person or any of its Representatives in accordance with the terms of such confidentiality agreement and promptly (B) terminate all access to any physical and or electronic data access previously granted rooms relating to a possible Company Takeover Proposal by such PersonPerson and its Representatives. Notwithstanding the commencement of the No-Shop Period Start Date, the Company may grant waivers, amendments or releases under any pre-existing standstill or similar provision to any Person to the extent necessary to allow for a confidential Company Takeover Proposal or amendment to a confidential Company Takeover Proposal to be made to the Company.
Appears in 1 contract
Sources: Merger Agreement (Tech Data Corp)