No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2, the Company shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly: (i) initiate or solicit any inquiry, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal; (ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2); (iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”); (iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal; (v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 2 contracts
Sources: Transaction Agreement (Avadel Pharmaceuticals PLC), Transaction Agreement (Alkermes Plc.)
No Solicitation or Negotiation. Subject to The Company agrees that neither it nor any actions which the Company is required to take so as to comply with the requirements of its Subsidiaries nor any of the Takeover Rules, from the date officers and directors of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2, the Company shall notit or its Subsidiaries shall, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and that it shall use reasonable its best efforts to instruct and cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants and other Representatives advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate initiate, solicit or solicit encourage any inquiry, inquiries or the making of any proposal or offer with respect tothat constitutes, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal;to, any Acquisition Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations withregarding, furnish or provide any non-public information or data to any Person relating to, any Acquisition Proposal. Notwithstanding anything in the foregoing to the Company or any of its Subsidiaries tocontrary, or afford access prior to the businessadoption of this Agreement by the Company Requisite Vote, properties, assets, books the Company may (A) provide 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 records total voting power of the equity securities of the Company or any if the board of its Subsidiaries to, otherwise cooperate directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal the Confidentiality Agreement (except to notify such Person as to the existence of the provisions of this defined in Section 5.29.7);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation engage in the Scheme Document discussions or the Proxy Statement, negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal or (C) after having complied with the requirements of this Section 6.3, approve, adopt, recommend, adopt or approve otherwise declare advisable or publicly propose to recommendapprove, adopt adopt, recommend or approve any Company Alternative Proposal declare advisable (publicly or (Dotherwise) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii)an Acquisition Proposal, a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws if and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect only to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principleextent that, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard in each such case referred to a Company Alternative Proposalin clause (A), so long as any action taken or statement made to so comply is consistent with this Section 5.2(a(B) or (yC) making any required disclosure to above, the board of directors of the Company Shareholders if the Company Board determines in good faith, faith after consultation with outside legal counsel, counsel that the failure to take such action would be inconsistent with is reasonably likely to result in a breach of their respective fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving (y) in each such case referred to in clause (A) or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b(B), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication if the board of directors of the type contemplated by Rule 14d-9(fCompany has determined in good faith based on the information then available and after consultation with its financial advisor that such Acquisition Proposal either constitutes a Superior Proposal (as defined below) under or is reasonably likely to result in a Superior Proposal; and (z) in the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionallycase referred to in clause (C) above, the board of directors of the Company shall, determines in good faith (after consultation with its financial advisor and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from the date of this Agreement) request from each Person (and such Person’s Representativesoutside legal counsel) that has executed such Acquisition Proposal is a confidentiality agreement in connection with its consideration of making a Company Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such PersonSuperior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Encore Medical Corp), Merger Agreement (Compex Technologies Inc)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so Except as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth expressly permitted in this Section 5.26.1, the Company shall not, and nor shall it shall cause authorize or permit any of its Subsidiaries and or any of its and or their respective directors, officers officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and employees not torepresentatives, and it shall use reasonable best efforts collectively, “Representatives”) to cause its other Representatives not to, directly or indirectly:
(i) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly encourage or take any other action to knowingly facilitate any inquiries or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement making of any Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes, or could reasonably be expected to lead to a Company Alternative to, any Acquisition Proposal, including without limitation, amending or granting any waiver or release under any standstill or similar agreement;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding, furnish to any Person any information or data 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;
(iii) make or authorize any statement, recommendation, endorsement or solicitation in support of any Acquisition Proposal; or
(iv) enter into any agreement regarding any Acquisition Proposal. Notwithstanding the foregoing, 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, in response to a Superior Proposal or a bona fide, unsolicited written Acquisition Proposal (as defined herein, but substituting 50% for 15%, except in the case of an asset sale, in which case “all or substantially all” shall be substituted for 15%), made or received after the date of this Agreement that states explicitly that it is not subject to any financing condition and that the Company Board determines in good faith after consultation with outside counsel and an independent financial advisor of nationally recognized reputation is reasonably likely to lead to a Superior Proposal (any such Acquisition Proposal, a “Potentially Superior Proposal”), in each case that did not result from a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c) of this Agreement, (x) furnish any non-public information relating with respect to the Company or and any of its Subsidiaries to, or afford access that has previously been provided to the businessBuyer to the Person making such Superior Proposal or Potentially Superior Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (y) participate in discussions or negotiations with such Person and its Representatives regarding such Superior Proposal or Potentially Superior Proposal. Without limiting the foregoing, properties, assets, books or records it is agreed that any violation of the restrictions set forth in this Section 6.1(a) by any Representative of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way with, whether or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify not such Person as is purporting to the existence act on behalf of the provisions Company or otherwise, shall be deemed to be a breach of this Section 5.2);
(iii6.1(a) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such PersonCompany.
Appears in 2 contracts
Sources: Merger Agreement (Danaher Corp /De/), Merger Agreement (Visual Networks Inc)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so Except as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.26.2, until the Company Effective Time, Seller and its Subsidiaries (including the Acquired Companies) shall not, and it Seller shall cause its Subsidiaries and its and their respective directors, officers officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and employees not toother authorized representatives (collectively, and it shall use reasonable best efforts to cause its other Representatives “Representatives”) not to, directly or indirectly:
(i) solicit, seek or initiate or solicit any inquiry, proposal or offer with respect to, or knowingly take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) offers, inquiries or the submission or announcement making of any Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, or engage, participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to a Company Alternative any person in connection with any inquiries, proposals or offers that constitute or could reasonably be expected to lead to, an Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations withregarding any Acquisition Proposal, or furnish to any Person any non-public information relating to the Company or any of its Subsidiaries to, or afford any Person other than Purchaser access to the business, properties, assetssuch party’s property, books or records (except pursuant to a request by a Government Entity) in connection with any offers, inquiries or the making of the Company any proposal or any of its Subsidiaries to, otherwise cooperate in any way withoffer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek to makelead to, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);any Acquisition Proposal; or
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make the provisions of any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination takeover statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party transactions contemplated by an Acquisition Proposal. Notwithstanding the foregoing or any Company Alternative Proposal;
anything to the contrary set forth in this Agreement, but subject to compliance with the other applicable terms of this Section 6.2, prior to receipt of the Seller Shareholder Approval, Seller may (vA) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person furnish non-public information with respect to the Company Acquired Companies 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 prior to taking any of its Subsidiaries; or
the actions contemplated by clauses (viA) enter into any agreement in principleand (B) above (w) Seller has received a bona fide written unsolicited Acquisition Proposal from a Qualified Person, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under Seller receives from such Qualified Person an executed confidentiality agreement on terms not less restrictive than exist in the Exchange Act with regard Confidentiality Agreement and additional provisions that expressly permit such party to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this terms of this Section 5.2(a) or 6.2 (a copy of which shall be provided to Purchaser), (y) making any required disclosure Seller has not materially breached this Section 6.2 with respect to such Acquisition Proposal, and (z) the Company Shareholders if the Company Seller Board determines in good faithhas determined, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that actions would reasonably be expected to lead be inconsistent with the Seller Board’s fiduciary duties under applicable Law. Any information made available or provided to a Company Alternative Proposal. The Company will promptly Qualified Person pursuant to this Section 6.2 by or on behalf of Seller shall, substantively concurrently therewith, be made available or provided to Purchaser (and in each case within twenty-four (24) hours from the date of this Agreement) request from each Person (and unless such Person’s Representatives) that information has executed a confidentiality agreement in connection with its consideration of making a Company Alternative Proposal already been provided 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such PersonPurchaser).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Communications Systems Inc), Securities Purchase Agreement (Lantronix Inc)
No Solicitation or Negotiation. Subject to any actions which the Company is required final sentence of this Section 5.3(b), and subject to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(c), from the date of this Agreement No-Shop Period Start Date until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and instruct their respective directors, officers and employees Representatives not to, and it shall use reasonable best efforts to cause its other authorize or knowingly permit any of their respective Representatives not to, directly or indirectly:
, (iA) initiate solicit, initiate, propose or solicit induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to, an Acquisition Proposal; (B) furnish to a Company Alternative Proposal;
any Person (iiother than Parent, Merger Sub or any designees of Parent or Merger Sub) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way withsuch case with the intent to induce the making, submission or announcement of, or assist, participate in, to knowingly facilitate encourage or knowingly encourage any effort byfacilitate, any Third Party proposal or offer that would constitutes or could reasonably be expected to seek lead to make, an Acquisition Proposal; (C) participate or has made, a Company Alternative engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (except or inquiries, proposals or offers that could reasonably be expected to notify lead to an Acquisition Proposal), in each case other than informing such Person as to Persons of the existence 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; (D) approve, endorse or recommend an Acquisition Proposal; or (E) enter into any letter of intent, 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, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following sentence of this Section 5.25.3(b);
(iii) (A) fail , and subject to make or withdraw or qualifythe terms of Section 5.3(c), amend or modify in any manner adverse to Parentsubstantially concurrently with the execution of this Agreement, the Scheme Recommendation Company shall request the prompt return or destruction of all non-public information concerning the recommendation contemplated by Section 3.6(c)(iii)Company Group theretofore furnished to any such Person with whom a confidentiality agreement was entered into at any time within the six month period immediately preceding the date hereof, if applicableand shall immediately cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately cease, (Bx) fail to include any solicitations, discussions, communications or negotiations with any Person (other than the Scheme Recommendation in the Scheme Document or the Proxy Statement, (CParties and their respective Representatives) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with an Acquisition Proposal (or inquiries, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal) by such action Person, in each case that exists as of the No-Shop Period Start Date, (y) all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the close of business on Company with respect to the tenth Transactions, and (10thz) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (providing any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person further information with respect to the Company or any Acquisition Proposal to any such Person or its Representatives. From the No-Shop Period Start Date until the earlier to occur of its Subsidiaries; or
(vi) enter into the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement solely to the extent that such provision prohibits or other agreement providing for or relating purports to prohibit a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected being made to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (xor any committee thereof) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board (or a committee thereof) determines in good faith, faith (after consultation with its financial advisors and outside legal counsel, ) that the failure to take such action would be do so is inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 2 contracts
Sources: Merger Agreement (Datto Holding Corp.), Merger Agreement (Datto Holding Corp.)
No Solicitation or Negotiation. Subject to any actions which From and after the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement Execution Date until the earlier to occur of (a) the Effective Time Closing Date and (b) the valid termination of this Agreement pursuant to and in accordance with Article IXARTICLE 8, except as otherwise set forth in expressly permitted by this Section 5.26.6, the Company Seller shall not, and it Seller shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
: (ii)(A) initiate solicit, initiate, knowingly induce, knowingly encourage or solicit any inquiry, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information) any communication, inquiries or the making of any submission, announcement, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (B) participate in any discussions or negotiations or cooperate in any way not permitted by this Section 6.6 with any Person regarding any submission, announcement, proposal or offer the consummation of which would constitute an Acquisition Proposal; (C) provide any information or data concerning Seller or the Transferred Assets to any Person in connection with) the submission , or announcement of in response to, any Company Alternative Proposal or any indicationsubmission, announcement, proposal or inquiry offer the consummation of which would constitute an Acquisition Proposal; (D) approve, endorse or recommend, make any public statement approving or recommending, or enter into any agreement relating to, any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (E) execute or enter into any letter of intent or any Contract contemplating or other relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or (F) take any action that could reasonably be expected to lead to an Acquisition Proposal; (ii) waive or release any Person from or amend any standstill agreement or any standstill provisions of any other Contract; or (iii) publicly propose to do any of the foregoing. Seller shall, and Seller shall cause its Representatives to, immediately cease and cause to be terminated any discussions, negotiations and communications with any Person conducted heretofore with respect to any Acquisition Proposal, or that would reasonably be expected to lead to a Company Alternative an Acquisition Proposal;
(ii) enter into, continue and shall promptly terminate access by any such Person to any physical or otherwise participate in any discussions electronic data room hosted by Seller or negotiations with, furnish any non-public information its Representatives relating to any such Acquisition Proposal and request the Company destruction or any of its Subsidiaries to, or afford access return (to the business, properties, assets, books or records extent provided for by the applicable confidentiality agreement) of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected and all nonpublic information previously provided to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(bPurchaser), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case case, as soon as reasonably practicable (but in any event within twenty-four three (243) hours from Business Days) after 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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Atreca, Inc.), Asset Purchase Agreement (Atreca, Inc.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from From and after the date of this Agreement until the earlier of the Effective Time and or the valid termination of this Agreement pursuant to Article VIII hereof, and in accordance with Article IX, except as otherwise set forth in this Section 5.26.1, the Company SkillSoft and SmartForce shall not, and it nor shall cause its either of them authorize or permit any of their respective Subsidiaries and its and or any of their or their Subsidiaries' respective directors, officers officers, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, investment bankers, attorneys, accountants, other advisors and employees not torepresentatives, and it shall use reasonable best efforts collectively, "Representatives") to cause its other Representatives not to, directly or indirectly:
(i) initiate solicit, initiate, encourage or solicit take any inquiry, other action to facilitate any inquiries or the making of any proposal or offer with respect tothat constitutes, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to, any Acquisition Proposal (as defined in Section 6.1(f)), including without limitation (A) approving any transaction under Section 203 of the DGCL or any applicable provision of Irish law, (B) approving any person becoming an "interested stockholder" under Section 203 of the DGCL and (C) amending or granting any waiver or release under any standstill or similar agreement with respect to a Company Alternative Proposal;any SkillSoft Common Stock or SmartForce Ordinary Shares or SmartForce ADSs, respectively; or
(ii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, furnish to any non-public person any information relating to the Company with respect to, assist or participate in any of its Subsidiaries effort or attempt by any person with respect to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, any Acquisition Proposal. Notwithstanding the foregoing, prior to (1) in the case of SkillSoft, the adoption of this Agreement at the SkillSoft Meeting or, (2) in the case of SmartForce, the approval of the SmartForce Voting Proposal at the SmartForce Meeting (in each case, the "Specified Time"), SkillSoft or assistSmartForce may, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of extent required by their respective fiduciary obligations, as determined in good faith by the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation SkillSoft Board or the recommendation contemplated by Section 3.6(c)(iii)SmartForce Board, if applicable, (B) fail to include as the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faithcase may be, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating in response to a Company Alternative Superior Proposal (as defined in Section 6.1(f)) that did not result from a breach by SkillSoft or SmartForce, as the case may only be made in accordance be, of this Section 6.1, and subject to compliance with the provisions of Section 5.2(b6.1(c), Section 5.2(c), Section 5.2(d(x) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement furnish information with respect to any Company Alternative SkillSoft or SmartForce, as the case may be, to the person making such Superior Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead and its Representatives pursuant to a Company Alternative customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (y) participate in discussions or negotiations with such person and its Representatives regarding any Superior Proposal. The Company will promptly (and Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in each this Section 6.1(a) by any Representative of SkillSoft or SmartForce, as the case within twenty-four (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 Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company may be, or any of its Subsidiaries and their Subsidiaries, whether or not such person is purporting to act on behalf of SkillSoft or SmartForce, as the case may be, or otherwise, shall promptly (and in each case within twenty-four (24) hours from the date be deemed to be a breach of this AgreementSection 6.1(a) terminate all physical and electronic data access previously granted to each such Personby SkillSoft or SmartForce, as the case may be.
Appears in 2 contracts
Sources: Merger Agreement (Smartforce Public LTD Co), Merger Agreement (Skillsoft Corp)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from From and after the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXVII, except as otherwise set forth in this Section 5.2, the Company shall notneither Parent nor any of its Subsidiaries shall, and it Parent shall cause its Subsidiaries and its and their respective Subsidiaries’ directors, officers and employees not to, and it shall use reasonable best efforts to cause its other and their Representatives not to, directly or indirectly:
(i) initiate solicit, initiate, knowingly induce, knowingly encourage or solicit 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, a Parent Acquisition Proposal;
(ii) participate in any discussions or negotiations or cooperate in any way not permitted by this Section 5.3 with any Person regarding any proposal the consummation of which would constitute a Parent Acquisition Proposal;
(iii) provide any information or data concerning Parent or any of its Subsidiaries to any Person in connection with any proposal the consummation of which would constitute a Parent Acquisition 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, a Parent Acquisition Proposal. Parent shall, and Parent shall cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect toto any Parent Acquisition Proposal, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Parent Acquisition Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 2 contracts
Sources: Merger Agreement (Engility Holdings, Inc.), Merger Agreement (Science Applications International Corp)
No Solicitation or Negotiation. Subject to any actions which the Company is required final sentence of this Section 5.3(a) and subject to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(b), from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries instruct (and its and use their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other cause) any of their respective Representatives (in their capacities as such) not to, directly or indirectly:
: (i) initiate solicit, initiate, propose or solicit knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, furnish Merger Sub) any non-public information relating to the Company Group or any of its Subsidiaries to, the Affiliated Practices or afford to any Person access to the business, properties, assets, books books, records or records personnel, of the Company Group or any of its Subsidiaries tothe Affiliated Practices, otherwise cooperate in any way withsuch case, in connection with the making, submission or announcement of, or assistto knowingly encourage, participate ininduce or facilitate, knowingly facilitate a proposal or knowingly encourage any effort by, any Third Party offer that constitutes or would reasonably be expected to seek lead to makean Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an inquiry, proposal or has madeoffer that constitutes or would reasonably be expected to lead to an Acquisition Proposal, a Company Alternative Proposal (except to notify in each case, other than informing such Person as to Persons of the existence of the provisions of contained in this Section 5.2);
(iii) (A) fail 5.3 and contacting the Person making the Acquisition Proposal in order to make or withdraw or qualify, amend or modify in any manner adverse to Parent, clarify the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any terms of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
Acquisition Proposal; (iv) take any action to make any “moratorium”approve, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” endorse or “business combination statute recommend an Acquisition Proposal; or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheetmemorandum of understanding, merger agreement, acquisition agreement, option agreement or other agreement providing for or Contract relating to a an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to, or would reasonably be expected to lead to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the final sentence of this Section 5.3(a) and subject to the terms of Section 5.3(b), after the date of this Agreement, the Company Alternative and its Subsidiaries shall, and shall instruct (and use its reasonable best efforts to cause) any of their respective Representatives (in their capacities as such) to (x) cease any discussions, communications or negotiations with any Person (other than Parent and its Representatives) in connection with an Acquisition Proposal or any indication, a proposal or inquiry offer that would reasonably be expected to lead to a Company Alternative an Acquisition Proposal by such Person, (y) promptly (and in any event within one (1) Business Day after the date of this Agreement) shut off all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by or on behalf of the Company or its Subsidiaries with respect to any Acquisition Proposal and request that all non-public information previously provided be returned or destroyed in accordance with the applicable confidentiality agreement. From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any existing standstill (or similar provision that prohibits or purports to prohibit a Company Alternative Proposal NDA). Nothing contained herein shall prevent proposal being made to the Company Board from (xor any committee thereof)), unless (A) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines (or any committee thereof) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(dand (B) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case any event within twenty-four (24) hours from the date hours) notifies Parent in writing of this Agreement) request from each Person (and any such Person’s Representatives) that has executed a confidentiality agreement in connection with its consideration of making a Company Alternative Proposal to return waiver, amendment or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personrelease.
Appears in 2 contracts
Sources: Merger Agreement (CVS HEALTH Corp), Merger Agreement (Oak Street Health, Inc.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements (a) Each of the Takeover Rules, from the date Seller and Audiovox agrees that neither it nor any of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2, the Company shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and or employees not towill, and that it shall use reasonable best efforts to will cause its agents, advisors and other Representatives representatives (including, without limitation, any investment banker, attorney or accountant retained by it), not to, directly or indirectly:
, (i) solicit, initiate or solicit any inquiry, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to the stockholders of Audiovox) that constitutes, or may reasonably be expected to lead to, any Competing Transaction (as hereinafter defined), or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to any Person Competing Transaction. The Seller or Audiovox, as applicable, shall notify the Purchaser as promptly as practicable (and in connection withany event within two (2) days after the submission Seller or announcement Audiovox, as applicable, attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (and the Seller or Audiovox, as applicable, shall notify the Purchaser concerning any material amendments to such proposal or offer). Audiovox shall provide the Purchaser with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Audiovox Board) of any Company Alternative Proposal meeting of the Audiovox Board at which the Audiovox Board is reasonably expected to consider any Competing Transaction. The Seller and Audiovox immediately shall cease and cause to be terminated all existing discussions or negotiations with any indicationparties conducted heretofore with respect to a Competing Transaction. The Seller and Audiovox agree not to, without the prior written consent of the Purchaser, release any Person from, or waive any provision of, any confidentiality or standstill agreement (unless the Audiovox Board, in order to comply with its fiduciary obligations to Audiovox and its stockholders under applicable Law, must waive the standstill provisions so that such Person may make a proposal or inquiry that would offer which may reasonably be expected to lead to a Company Alternative Superior Proposal;) to which the Seller and Audiovox is a party relating to Audiovox, the Seller or the Purchased Assets.
(b) Notwithstanding anything to the contrary in Section 5.06, the Audiovox Board may furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Audiovox Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation), that such proposal or offer constitutes, or may be reasonably expected to lead to, a Superior Proposal (as hereunder defined), (ii) enter intodetermined, continue in its good faith judgment after consultation with independent legal counsel (who may be Audiovox’s regularly engaged independent legal counsel), that, in light of such proposal or otherwise participate in any offer, the furnishing of such information or entering into discussions or negotiations withis required to comply with its fiduciary obligations to Audiovox and its stockholders under applicable Law, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) provided written notice to the Purchaser of its intent to furnish information or enter into discussions with such person, and (Aiv) fail obtained from such person an executed confidentiality agreement on terms no less favorable to make Audiovox than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting Audiovox from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 5.06(c), neither the Audiovox Board nor any committee thereof shall withdraw or qualifymodify, amend or modify propose to withdraw or modify, in any a manner adverse to Parentthe Purchaser, the Scheme Audiovox Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation a “Change in the Scheme Document or the Proxy Statement, (CAudiovox Recommendation”) recommend, adopt or approve or publicly propose to recommend, adopt or approve cause or permit Audiovox to enter into any Company Alternative Proposal letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if the Audiovox Board determines, in its good faith judgment prior to the time of the Audiovox Stockholders’ Meeting and after consultation with independent legal counsel (Dwho may be Audiovox’s regularly engaged independent legal counsel), that it is required to make a Change in the Audiovox Recommendation to comply with its fiduciary obligations to Audiovox and its stockholders under applicable Law, the Audiovox Board may make a Change in the Audiovox Recommendation to recommend a Superior Proposal, but only (i) fail after providing written notice to reaffirm the Scheme Recommendation in Purchaser (a statement complying with Rule 14e-2(a“Notice of Superior Proposal”) under advising Audiovox that the Exchange Act with regard to Audiovox Board has received a Company Alternative Proposal or in connection with such action by Superior Proposal, specifying the close of business on the tenth (10th) Business Day after the commencement material terms and conditions of such Company Alternative Superior Proposal under Rule 14e-2(aand identifying the person making such Superior Proposal and indicating that the Audiovox Board intends to effect a Change in the Audiovox Recommendation and the manner in which it intends (or may intend) to do so, and (any ii) if the Purchaser does not, within three (3) business days of Purchaser’s receipt of the foregoing Notice of Superior Proposal, make an offer that the Audiovox Board determines, in this clause its good faith judgment (iii), after having received the advice of a “Company financial advisor of nationally recognized reputation) to be at least as favorable to Audiovox’s stockholders as such Superior Proposal. Any disclosure that the Audiovox Board Change of Recommendation”);
(iv) take any action may determine that it is compelled to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any receipt of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected offer for a Competing Transaction or otherwise in order to lead comply with its fiduciary obligations to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent Audiovox and its stockholders under applicable Law, including under Rule 14d-9 or 14e-2 of the Company Board from (x) complying with Rule 14e-2(a) rules promulgated under the Securities Exchange Act with regard to a Company Alternative Proposalof 1934, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faithamended, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall will not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from the date violation 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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Utstarcom Inc), Asset Purchase Agreement (Utstarcom Inc)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from (1) From the date of this Agreement hereof until the earlier of the Effective Time and Closing or the valid termination of this Agreement pursuant to and in accordance with Article IXVII, except as otherwise set forth in permitted by this Section 5.25.01, the Company shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
(i) initiate or solicit any inquiry, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company Parent shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives toto (A) not, cease immediately and cause directly or indirectly, (i) initiate, solicit or knowingly encourage or knowingly facilitate any inquiries, expressions of interest, proposals or offers that constitute or would reasonably be expected to be terminated lead to an Acquisition Proposal, (ii) engage in or otherwise participate in any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative negotiations regarding an Acquisition Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly an Acquisition Proposal (and other than, in each case within twenty-four (24) hours response to an unsolicited written inquiry, to ascertain facts from the date Person making such Acquisition Proposal for the purpose of informing itself about such Acquisition Proposal and the Person that made it and to refer the inquiring Person to this Section 5.01), (iii) provide (including through access to any data room) any non-public information relating to Parent or any of its Subsidiaries to any Person relating to an Acquisition Proposal, (iv) enter into any agreement, letter of intent, memorandum of understanding, agreement in principle or other Contract with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with the terms of this Agreement) (each, an “Alternative Acquisition Agreement”) or (v) resolve or agree to do any of the foregoing and (B) immediately cease and cause to be terminated all discussions, activities (including by terminating access to any data room), negotiations, solicitation or encouragement with any Persons that may be ongoing with respect to an Acquisition Proposal as of the date hereof. Parent shall, and shall cause its Subsidiaries to, request from each any Person (and such Person’s its Representatives) that has executed a confidentiality agreement received any non-public information about Parent or its Subsidiaries that was furnished by or on behalf of Parent prior to the date hereof in connection with its consideration of making a Company Alternative an Acquisition Proposal to return or destroy all such information.
(as provided 2) Notwithstanding anything in this Agreement to the terms of such confidentiality agreementcontrary, prior to the time that the Requisite Parent Vote is obtained, but not after, Parent may (A) all confidential provide information concerning the Company in response to a request therefor by a Person or any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from Persons who have made a bona fide written Acquisition Proposal received after the date of this AgreementAgreement that did not result from a breach of this Agreement if Parent receives from such Person or Persons an executed customary confidentiality agreement containing terms not materially less restrictive in the aggregate to the counterparty thereto than the terms of the Confidentiality Agreement and promptly (and, in any event, within forty-eight (48) terminate all physical hours) discloses (and, if applicable, provides copies of) any such documents to Buyer to the extent not previously provided to Buyer or (B) engage or participate in any discussions or negotiations with any Person who has made such a bona fide written Acquisition Proposal, if and electronic data access previously granted only to each the extent that, prior to taking any action described in clause (A) or (B) above, the Parent Board (x) determines in good faith based on the information then available and after consultation with its financial advisors that such PersonAcquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal and (y) determines in good faith after consultation with its outside legal counsel that failure to take such action would likely be inconsistent with the trustees’ duties under applicable Law.
(3) Parent agrees that any actions taken by its Subsidiaries or its or its Subsidiaries’ Representatives that would not be permitted to be taken by Parent pursuant to this Section 5.01 shall be deemed to be a breach of this Section 5.01 by Parent.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Hospitality Properties Trust), Equity Purchase Agreement (Spirit MTA REIT)
No Solicitation or Negotiation. Subject to any actions which the (i) The Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXagrees that, except as otherwise set forth in expressly permitted by this Section 5.26.2, the Company shall notneither it nor any of its Subsidiaries nor any of its or their respective officers and directors shall, and that it shall cause its Subsidiaries instruct and its and their respective directors, officers and employees not to, and it shall use commercially reasonable best efforts to cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants and other Representatives advisors and representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors and representatives, collectively, “Representatives”) not to, directly or indirectly:
(iA) initiate initiate, solicit or solicit knowingly encourage any inquiry, inquiries or the making of any proposal or offer with respect tothat constitutes, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative to, any Acquisition Proposal;
(iiB) enter intointo any agreement or agreement in principle with any Person concerning any letter of intent, memorandum of understanding, acquisition agreement, merger agreement, joint venture agreement, partnership agreement or other similar agreement concerning an Acquisition Proposal (other than a confidentiality agreement entered into in compliance with Section 6.2(a)(ii)) (an “Alternative Acquisition Agreement”) or grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal (except in respect of any standstill agreement entered into by the Company in compliance with Section 6.2(a)(ii)); or
(C) engage in, continue or otherwise participate in any discussions or negotiations withregarding any Acquisition Proposal.
(ii) Notwithstanding anything in this Section 6.2 to the contrary, furnish at any time following the receipt of an Acquisition Proposal that was made on or after the date hereof in circumstances not otherwise involving a breach of this Agreement and prior to the time, but not after, the Requisite Company Vote is obtained, the Company may (A) provide information in response to a request therefor by a Person that has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than fifty percent (50%) of the assets (on a consolidated basis) or more than fifty percent (50%) of the total voting power of the equity securities of the Company (by acquisition, merger or otherwise) if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to such Person than those contained in the Confidentiality Agreement (provided that any such confidentiality agreement shall expressly permit the Company to provide copies of forms of agreements in respect of such Acquisition Proposal to Parent and its Representatives as contemplated in Section 6.2(e) and any such confidentiality agreement need not contain a standstill provision) and promptly discloses (and, if applicable, contemporaneously provides copies of) any non-public information relating so provided to Parent to the Company extent not previously provided to Parent; (B) engage or participate in any of discussions or negotiations with any Person (and its Subsidiaries toRepresentatives) that has made such an unsolicited bona fide written Acquisition Proposal; and (C) after having complied with Section 6.2(e), approve, recommend, or afford access otherwise declare advisable or propose to approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, if and only to the businessextent that, properties(x) prior to taking any action described in clause (ii)(A), assets(ii)(B) or (ii)(C) above, books or records the board of directors of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, faith after consultation with its outside legal counsel, counsel that the failure to take such action would be inconsistent with the directors’ fiduciary obligations under applicable Law; provided, that any Company Board Change (y) in each such case referred to in clause (ii)(A) or (ii)(B) above, the board of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication directors of the type contemplated by Rule 14d-9(fCompany has determined in good faith based on the information then available and after consultation with its outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (z) under in the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionallycase referred to in clause (ii)(C) above, the board of directors of the Company shall, and shall cause determines in good faith (after consultation with its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from the date of this Agreement) request from each Person (and such Person’s Representativesoutside legal counsel) that has executed such Acquisition Proposal is a confidentiality agreement in connection with its consideration of making a Company Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such PersonSuperior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (KAYAK Software Corp), Merger Agreement (Priceline Com Inc)
No Solicitation or Negotiation. Subject to any actions which At all times during the Company is required to take so as to comply period commencing with the requirements of the Takeover Rules, from the date execution and delivery of this Agreement and continuing until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to ARTICLE VII and in accordance with Article IXthe Closing, except as otherwise set forth in expressly permitted by this Section 5.24.10, the Company shall not, Debtor and it shall cause its Subsidiaries and its and their its Subsidiaries’ respective directors, officers and employees not toshall not, and it the Debtor shall use reasonable best efforts to cause direct its other Representatives agents and representatives not to, directly or indirectly:
(i) initiate initiate, solicit, propose or solicit knowingly encourage or otherwise knowingly facilitate any inquiry, inquiry or the making of any proposal or offer with respect tothat constitutes or, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Acquisition Proposal or any indicationinquiry, proposal or inquiry offer that would reasonably be expected to lead to a Company Alternative an Acquisition Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent to state that the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with terms of this Section 5.2(a4.10 prohibit such discussions);
(iii) provide any non-public information or (y) making any required disclosure data concerning the Debtor or its Subsidiaries, or access to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving Debtor or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives toproperties, cease immediately books and cause records to be terminated any and all existing activitiesPerson, discussions or negotiationsin each case, if any, in connection with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Acquisition Proposal or with respect to any indicationinquiry, proposal or inquiry offer that constitutes or would reasonably be expected to lead to a Company an Acquisition Proposal;
(iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal;
(v) approve or recommend or publicly declare advisable any Acquisition Proposal or proposal reasonably expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Proposal. The Company will promptly Acquisition Agreement;
(and in each case within twenty-four vi) execute or enter into an Alternative Acquisition Agreement; or
(24vii) 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 Alternative Proposal agree, authorize or commit to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or do any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personforegoing.
Appears in 2 contracts
Sources: Alternative Plan Sponsor Agreement (Quality Care Properties, Inc.), Plan Sponsor Agreement (Quality Care Properties, Inc.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until Until the earlier of the Effective Time and the valid (i) termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2its terms and (ii) the LLC Merger Effective Time, the Company shall notshall, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not directors to, and it shall use reasonable best efforts to cause instruct its and its Subsidiaries’ other Representatives not to, (A) immediately cease and cause to be terminated any solicitation, knowing encouragement, discussions or negotiations with respect to any Acquisition Proposal or any potential Acquisition Proposal and (B) not, directly or indirectly:
indirectly (i1) initiate initiate, solicit, knowingly encourage or solicit knowingly facilitate any inquiry regarding, or the making or submission of any inquiry, indication of interest, proposal or offer with respect tothat constitutes, or take would reasonably be expected to lead to an Acquisition Proposal, (2) participate in or engage in negotiations or substantive discussions regarding any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Acquisition Proposal or any indicationinquiry, indication of interest, proposal or inquiry offer that would reasonably be expected to lead to a an Acquisition Proposal (it being understood that the Company Alternative Proposal;
may inform such Persons of the provisions contained in this Section 5.4), (ii3) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company any Person (other than Parent and its Representatives) in connection with any Acquisition Proposal or any inquiry, indication of its Subsidiaries tointerest, otherwise cooperate in any way with, proposal or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party offer that would reasonably be expected to seek lead to makean Acquisition Proposal, (4) recommend or has madeenter into any other letter of intent, a Company Alternative memorandum of understanding, agreement in principle, option agreement, acquisition agreement, merger agreement, joint venture agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) with respect to an Acquisition Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in for any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iiiAcceptable Confidentiality Agreement), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D5) fail approve, authorize or agree to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (do any of the foregoing foregoing. Promptly (and in any event within 24 hours) after the execution of this clause Agreement, the Company shall terminate access by any Person (iii)other than the Company, a “Company Board Change Parent, their respective Affiliates and each of Recommendation”);
(ivtheir respective Representatives) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party physical or electronic data room (including the Project ▇▇▇▇▇▇ virtual data room hosted by Intralinks) relating to any potential Acquisition Proposal. Notwithstanding the foregoing, the Company Alternative Proposal;
(v) waive, terminate, modify shall be permitted to grant a waiver of or fail to enforce any provision of terminate any “standstill” or similar obligation of any person Person with respect to the Company or any of its Subsidiaries; orSubsidiaries solely to the extent necessary to allow such Person (if it has not been solicited in breach of this Section 5.4) to submit, on a confidential basis to the Board of Directors, an Acquisition Proposal, and the Company shall promptly notify (and in any event such notice to be delivered no later than 48 hours after the Company’s grant of such waiver or termination) Parent thereof after granting any such waiver.
(vii) enter Notwithstanding the foregoing, the Company and its Representatives shall be permitted, prior to the Company Stockholders Meeting and subject to the Company first entering into an Acceptable Confidentiality Agreement, to engage in discussions and negotiations with, and/or provide any agreement nonpublic information or data to, any Person (and their respective Representatives) who makes a bona fide written Acquisition Proposal after the execution of this Agreement (that did not result from a breach of this Section 5.4), that the Board of Directors concludes in principlegood faith (after consultation with its outside legal counsel and financial advisors) based on the information then available, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement either constitutes or other agreement providing for or relating would reasonably be expected to lead to a Superior Proposal. The Company Alternative shall provide Parent with a copy of any such nonpublic information or data provided to such Person pursuant to the prior sentence concurrently or promptly (and in any event within 48 hours) after furnishing such information to such Person (except to the extent that such nonpublic information or data shall have been previously provided to Parent). Notwithstanding anything to the contrary in this Agreement, upon prior written notice to Parent, the Company may contact any Person submitting a bona fide Acquisition Proposal after the date of this Agreement (that did not result from a breach of this Section 5.4) solely to clarify the terms of the Acquisition Proposal that are reasonably necessary to determine whether such Acquisition Proposal constitutes or would reasonably be likely to lead to a Superior Proposal.
(ii) The Company shall inform Parent in writing promptly (and in any indicationevent within 24 hours) after the receipt by the Company of any inquiry, indication of interest, proposal or inquiry offer received after the execution of this Agreement with respect to an Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person that informs the Company or any of its Subsidiaries that it is considering making, or has made, an Acquisition Proposal. Such notice shall indicate the material terms (including price), conditions of any proposals or offers, to the extent known, including the identity of the Person making such Acquisition Proposal, the financing sources thereof and true and complete copies of any written requests, inquiries, indications of interest, proposals or offers and any other material agreements or, if applicable, reasonably detailed written summary of any oral requests, inquiries, indications of interest, proposal or offers from the Person making such Acquisition Proposal. Following such notice, the Company shall keep Parent reasonably informed on a reasonably current basis (but, in any event, within 48 hours after any material change or development) of any material developments regarding any such Acquisition Proposal or any material change to the terms of any such Acquisition Proposal and the status of any such discussions or negotiations with respect thereto.
(iii) Except as provided in Section 5.4(b)(iv), neither the Board of Directors nor any committee thereof shall (A) withhold, withdraw, modify or qualify in any manner adverse to Parent, Merger Sub I or Merger Sub II or propose publicly to withhold, withdraw, modify or qualify in any manner adverse to Parent, the Company Alternative Proposal Recommendation, (B) fail to include the Company Recommendation in the Proxy Statement, (C) make or publicly propose to make any recommendation in connection with a tender offer or exchange offer commenced by a third party other than a Company Alternative recommendation against such offer or a customary “stop, look and listen” communication, (D) in the event an Acquisition Proposal NDA). Nothing contained herein shall prevent has been publicly announced or publicly disclosed, fail to publicly reaffirm the Company Recommendation within 10 Business Days of Parent’s written request that the Company do so (provided that Parent shall be entitled to make such a written request for reaffirmation on no more than two occasions with respect to each Acquisition Proposal unless such Acquisition Proposal is subsequently publicly modified in any material respect in which case Parent may make such request once each time such modification is made) (any of the foregoing clauses (A), (B), (C) or (D), a “Change in Company Recommendation”) or (E) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any Acquisition Agreement constituting, or that would reasonably be expected to lead to, an Acquisition Proposal (excluding, for the avoidance of doubt, any confidentiality or non-disclosure agreement entered into in accordance with Section 5.4(b)(i)).
(iv) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Company Required Stockholders Vote having been obtained, the Company may make a Change in Company Recommendation (and/or in the case of a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)), in each case, if and only if (A) in the case of an Acquisition Proposal, a bona fide written Acquisition Proposal (that did not result from a breach of this Section 5.4) is received by the Company, and the Board from of Directors has concluded in good faith (after consultation with its outside legal counsel and financial advisors), based on the information then available, that such Acquisition Proposal constitutes a Superior Proposal, (B) the Board of Directors has concluded in good faith (after consultation with its outside legal counsel) that failure to do so would reasonably be expected to be inconsistent with its statutory or fiduciary duties, (C) five Business Days (the “Notice Period”) shall have elapsed since the Company has (1) given written notice to Parent advising Parent that the Company intends to take such action and specifying the material terms or conditions of any such Superior Proposal or Intervening Event that is the basis of the proposed action and (2) provided to Parent a copy of the latest draft of any principal documentation relating to the Superior Proposal or Intervening Event, if any (a “Notice of Recommendation Change”) (it being understood that, in the case of a Superior Proposal, any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change and a new Notice Period, except that the five Business Day Notice Period referenced above shall instead be equal to the longer of (x) complying three Business Days or (y) the period remaining under the existing Notice Period immediately prior to the delivery of such additional notice under this clause (C)), (D) during the Notice Period, the Company has considered and, at the reasonable request of Parent, engaged in good faith discussions and negotiations with Parent regarding, any adjustment or modification of the terms of this Agreement and the Equity Commitment Letter proposed by Parent such that, in the case of an Acquisition Proposal, such Acquisition Proposal would no longer constitute a Superior Proposal or, in the case of an Intervening Event, such adjustment or modification would obviate the need to make such Change in Company Recommendation, and (E) the Board of Directors, following the Notice Period, again reasonably determines in good faith (after consultation with outside legal counsel and taking into account any adjustment or modification of the terms of this Agreement and the Equity Commitment Letter irrevocably proposed in writing by Parent) that failure to do so would reasonably be expected to be inconsistent with their statutory or fiduciary duties under applicable Law.
(v) Nothing contained in this Section 5.4 shall prohibit the Board of Directors, the Company or its Subsidiaries from, directly or indirectly through its Representatives, (A) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act, (B) making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder (for the avoidance of doubt, it being agreed that the issuance by the Company or the Board of Directors of a “stop, look and listen” or similar statement of the type contemplated by Rule 14d-9 promulgated under the Exchange Act with regard to shall not constitute a Change in Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(aRecommendation) or (yC) making any required other disclosure to the stockholders of the Company Shareholders that is required by applicable Law or if the Company Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to take make such action disclosure would reasonably be expected to be inconsistent with their statutory or fiduciary duties under applicable Law; provided, however, that, if any such disclosures or communications do not reaffirm the Company Recommendation in such disclosure or communication or have the effect of withdrawing, qualifying or modifying the Company Recommendation in a manner adverse to Parent, such disclosure or communication shall constitute a Change in Company Recommendation (it being agreed that the foregoing does not apply to any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication statement of the type contemplated by Rule 14d-9(f) 14d-9 promulgated under the Exchange Act shall not constitute or disclosing a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act) and nothing in this Section 5.4(b)(v) will be deemed to permit the Board of Directors to make a Change in Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior Recommendation except to the date of extent permitted by this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such PersonSection 5.4(b)(v).
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the Company is required final sentence of this Section 5.3(a), and subject to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(b), from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not authorize or knowingly permit any of their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
, (iA) initiate solicit, initiate, propose or solicit induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to, an Acquisition Proposal; (B) furnish to a Company Alternative Proposal;
any Person (iiother than Parent, Merger Sub or any designees of Parent or Merger Sub) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way withsuch case with the intent to induce the making, submission or announcement of, or assist, participate in, to knowingly facilitate encourage or knowingly encourage any effort byfacilitate, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (C) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (or inquiries, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal), in each case other than informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal in order to clarify the terms of the Acquisition Proposal in connection with determining whether the Acquisition Proposal constitutes a Superior Proposal; (D) approve, endorse or recommend an Acquisition Proposal; or (E) enter into any letter of intent, 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, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), promptly (and in any event within two Business Days) following the execution of this Agreement the Company Alternative Proposal shall request the return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person (other than Parent and its Affiliates) with whom a confidentiality agreement was entered into at any time within the six-month period immediately preceding the date hereof with respect to an Acquisition Proposal, and shall immediately cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately (x) cease any discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal (or proposals or offers that could reasonably be expected to lead to an Acquisition Proposal) by such Person, in each case that exists as of the date of this Agreement and (y) shut off all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company Alternative Proposal NDA)with respect to the Transactions. Nothing contained herein shall prevent From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a proposal being made to the Company Board from (xor any committee thereof) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if unless the Company Board determines (or any committee thereof) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which Section 5.3(c), during the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2Pre-Closing Period, the Company shall will not, and it shall will cause its Subsidiaries and its and their respective directors, directors and executive officers and employees not to, and it shall use reasonable best efforts to cause the Company will not authorize or permit any of its or its Subsidiaries’ employees, consultants or other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, propose or solicit any inquiryinduce the making, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of of, or knowingly encourage, facilitate or assist, any Company Alternative Proposal or any indication, proposal or inquiry that would constitutes, or is reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Merger Sub or otherwise participate in any discussions or negotiations with, furnish of their respective designees) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company or any of its Subsidiaries to(other than Parent, otherwise cooperate Merger Sub or any of their respective designees), in any way withsuch case in connection with any Acquisition Proposal or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal or the making of any proposal that would reasonably be expected to lead to a Company Alternative Proposal an Acquisition Proposal; (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (xiii) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposalparticipate, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines engage in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement Person with respect to any Company Alternative an Acquisition Proposal or with respect to any indicationproposals or inquiries from third Persons relating to the making of an Acquisition Proposal (other than only informing such Persons of the provisions contained in this Section 5.3); (iv) approve, endorse or recommend any proposal that constitutes, or inquiry that would is reasonably be expected to lead to, an Acquisition Proposal; (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to a Company an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative ProposalAcquisition Agreement”); or (vi) authorize or commit to do any of the foregoing. The During the Pre-Closing Period, the Company will promptly (not be required to enforce, and in each case within twenty-four (24) hours from the date will be permitted to waive, any provision of this Agreement) request from each Person (and such Person’s Representatives) that has executed a any standstill or confidentiality agreement in connection with its consideration of making to the extent that such provision prohibits or purports to prohibit a Company Alternative Proposal confidential proposal being made to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company Board (or any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personcommittee thereof).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Forescout Technologies, Inc)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements (a) Each of the Takeover Rules, from the date Seller and Audiovox agrees that neither it nor any of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2, the Company shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and or employees not towill, and that it shall use reasonable best efforts to will cause its agents, advisors and other Representatives representatives (including, without limitation, any investment banker, attorney or accountant retained by it), not to, directly or indirectly:
, (i) solicit, initiate or solicit any inquiry, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to the stockholders of Audiovox) that constitutes, or may reasonably be expected to lead to, any Competing Transaction (as hereinafter defined), or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to any Person Competing Transaction. The Seller or Audiovox, as applicable, shall notify the Purchaser as promptly as practicable (and in connection withany event within two (2) days after the submission Seller or announcement Audiovox, as applicable, attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (and the Seller or Audiovox, as applicable, shall notify the Purchaser concerning any material amendments to such proposal or offer). Audiovox shall provide the Purchaser with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Audiovox Board) of any Company Alternative Proposal meeting of the Audiovox Board at which the Audiovox Board is reasonably expected to consider any Competing Transaction. The Seller and Audiovox immediately shall cease and cause to be terminated all existing discussions or negotiations with any indicationparties conducted heretofore with respect to a Competing Transaction. The Seller and Audiovox agree not to, without the prior written consent of the Purchaser, release any Person from, or waive any provision of, any confidentiality or standstill agreement (unless the Audiovox Board, in order to comply with its fiduciary obligations to Audiovox and its stockholders under applicable Law, must waive the standstill provisions so that such Person may make a proposal or inquiry that would offer which may reasonably be expected to lead to a Company Alternative Superior Proposal;) to which the Seller and Audiovox is a party relating to Audiovox, the Seller or the Purchased Assets.
(b) Notwithstanding anything to the contrary in Section 5.06, the Audiovox Board may furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Audiovox Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation), that such proposal or offer constitutes, or may be reasonably expected to lead to, a Superior Proposal (as hereunder defined), (ii) enter intodetermined, continue in its good faith judgment after consultation with independent legal counsel (who may be Audiovox's regularly engaged independent legal counsel), that, in light of such proposal or otherwise participate in any offer, the furnishing of such information or entering into discussions or negotiations withis required to comply with its fiduciary obligations to Audiovox and its stockholders under applicable Law, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) provided written notice to the Purchaser of its intent to furnish information or enter into discussions with such person, and (Aiv) fail obtained from such person an executed confidentiality agreement on terms no less favorable to make Audiovox than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting Audiovox from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 5.06(c), neither the Audiovox Board nor any committee thereof shall withdraw or qualifymodify, amend or modify propose to withdraw or modify, in any a manner adverse to Parentthe Purchaser, the Scheme Audiovox Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation a "Change in the Scheme Document or the Proxy Statement, (CAudiovox Recommendation") recommend, adopt or approve or publicly propose to recommend, adopt or approve cause or permit Audiovox to enter into any Company Alternative Proposal letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if the Audiovox Board determines, in its good faith judgment prior to the time of the Audiovox Stockholders' Meeting and after consultation with independent legal counsel (Dwho may be Audiovox's regularly engaged independent legal counsel), that it is required to make a Change in the Audiovox Recommendation to comply with its fiduciary obligations to Audiovox and its stockholders under applicable Law, the Audiovox Board may make a Change in the Audiovox Recommendation to recommend a Superior Proposal, but only (i) fail after providing written notice to reaffirm the Scheme Recommendation in Purchaser (a statement complying with Rule 14e-2(a"Notice of Superior Proposal") under advising Audiovox that the Exchange Act with regard to Audiovox Board has received a Company Alternative Proposal or in connection with such action by Superior Proposal, specifying the close of business on the tenth (10th) Business Day after the commencement material terms and conditions of such Company Alternative Superior Proposal under Rule 14e-2(aand identifying the person making such Superior Proposal and indicating that the Audiovox Board intends to effect a Change in the Audiovox Recommendation and the manner in which it intends (or may intend) to do so, and (any ii) if the Purchaser does not, within three (3) business days of Purchaser's receipt of the foregoing Notice of Superior Proposal, make an offer that the Audiovox Board determines, in this clause its good faith judgment (iii), after having received the advice of a “Company financial advisor of nationally recognized reputation) to be at least as favorable to Audiovox's stockholders as such Superior Proposal. Any disclosure that the Audiovox Board Change of Recommendation”);
(iv) take any action may determine that it is compelled to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any receipt of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected offer for a Competing Transaction or otherwise in order to lead comply with its fiduciary obligations to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent Audiovox and its stockholders under applicable Law, including under Rule 14d-9 or 14e-2 of the Company Board from (x) complying with Rule 14e-2(a) rules promulgated under the Securities Exchange Act with regard to a Company Alternative Proposalof 1934, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faithamended, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall will not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from the date violation 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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the The Company is required to take so agrees that, except as to comply with the requirements of the Takeover Rulesexpressly permitted by this Section 6.2, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXVIII, except as otherwise set forth in this Section 5.2neither it nor any of its Subsidiaries nor any of the officers, the Company shall notdirectors and employees of it or its Subsidiaries shall, and that it shall cause instruct and use its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other Representatives advisors and representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors and representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate initiate, solicit or solicit knowingly encourage any inquiryinquiries or the making of any indication of interest, proposal or offer with respect tothat constitutes, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal;to, any Acquisition Proposal (as defined below) or any SunEdison Standalone Acquisition Proposal (as defined in the Voting and Support Agreement); or
(ii) enter intoengage in, continue or otherwise participate in any discussions (other than to request clarification of an Acquisition Proposal that has already been made for purposes of assessing whether such Acquisition Proposal is or would be reasonably likely to result in a Superior Proposal) or negotiations withregarding, furnish or provide any non-public information or data to any Person relating to the Company or any of its Subsidiaries to, any inquiry, indication of interest, proposal or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withoffer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek to makelead to, an Acquisition Proposal or has made, a Company Alternative SunEdison Standalone Acquisition Proposal other than a Permitted SunEdison Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2defined below);; or
(iii) (A) fail knowingly facilitate any effort or attempt to make any inquiry, indication of interest, proposal or withdraw offer that constitutes, or qualifycould reasonably be expected to lead to, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative an Acquisition Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to SunEdison Standalone Acquisition Proposal other than a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);Permitted SunEdison Proposal; or
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or release any Person (other than Parent and its Affiliates) from any provision of, or fail to enforce or grant any provision of permission, waiver or request under, any confidentiality or “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indicationobligation, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent confidentiality or similar agreement with a creditor of SunEdison that does not contain a “standstill” or similar obligation, provided that the Company Board shall not be required to take, or be prohibited from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposaltaking, so long as any action taken otherwise required or statement made to so comply is consistent with prohibited under this Section 5.2(asub-clause (iv) or (y) making any required disclosure to the Company Shareholders if the Company Board board of directors of the Company, or any duly authorized committee thereof, determines in good faith, after consultation with its outside legal counsel, that such action or inaction would reasonably be expected to result in a breach of the directors’ fiduciary duties under applicable Law; or
(v) execute or enter into any letter of intent, agreement in principle, term sheet, memorandum of understanding, merger agreement, acquisition agreement or other similar agreement (other than an Acceptable Confidentiality Agreement) relating to an Acquisition Proposal or a SunEdison Standalone Acquisition Proposal other than a Permitted SunEdison Proposal (an “Alternative Acquisition Agreement”). Notwithstanding anything in the foregoing to the contrary, prior to the time, but not after, the Requisite Company Vote is obtained, 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 that did not result from a breach of this Section 6.2 if the Company has received or receives from the Person so requesting such information an executed confidentiality agreement on terms that are not less restrictive to the other party than those contained in the Confidentiality Agreement (as defined in Section 9.7); it being understood that such confidentiality agreement need not prohibit the making, or amendment, of an Acquisition Proposal and shall not include any term that would prevent the Company from complying with its obligations under this Agreement (any confidentiality agreement satisfying the criteria of this clause (A) being referred to as an “Acceptable Confidentiality Agreement”); and promptly discloses (and, if applicable, provides copies of) any such information to Parent to the extent not previously disclosed or provided; and (B) engage or participate in any discussions or negotiations with any Person who has made such a bona fide written Acquisition Proposal; if and only to the extent that, (x) prior to taking any action described in clause (A) or (B) above, the board of directors of the Company or any duly authorized committee thereof determines in good faith after consultation with its outside legal counsel that failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to result in a Company Alternative Proposal. The Company will promptly breach of the directors’ fiduciary duties under applicable Law, and (and y) in each such case within twenty-four referred to in clause (24A) hours from or (B) above, the date board of this Agreement) request from each Person (and such Person’s Representatives) that has executed a confidentiality agreement in connection with its consideration directors of making a Company Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of duly authorized committee thereof has determined in good faith based on the information then available and after consultation with its Subsidiaries outside legal counsel and shall promptly financial advisor that such Acquisition Proposal either constitutes a Superior Proposal (and as defined below) or is reasonably likely to result in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Persona Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the The Company is required to take so agrees that, except as to comply with the requirements of the Takeover Rulesexpressly permitted by this Section 6.3, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXVIII, except as otherwise set forth in this Section 5.2neither it nor any of its Subsidiaries nor any of the officers, the Company shall notdirectors and employees of it or its Subsidiaries shall, and that it shall cause instruct and use its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other Representatives advisors and representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors and representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate initiate, solicit or solicit knowingly encourage any inquiryinquiries or the making of any indication of interest, proposal or offer with respect tothat constitutes, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal;to, any Acquisition Proposal (as defined below) or any SunEdison Standalone Acquisition Proposal (as defined in the Voting and Support Agreement); or
(ii) enter intoengage in, continue or otherwise participate in any discussions (other than to request clarification of an Acquisition Proposal that has already been made for purposes of assessing whether such Acquisition Proposal is or would be reasonably likely to result in a Superior Proposal) or negotiations withregarding, furnish or provide any non-public information or data to any Person relating to the Company or any of its Subsidiaries to, any inquiry, indication of interest, proposal or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withoffer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek to makelead to, an Acquisition Proposal or has made, a Company Alternative SunEdison Standalone Acquisition Proposal other than a Permitted SunEdison Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2defined below);; or
(iii) (A) fail knowingly facilitate any effort or attempt to make any inquiry, indication of interest, proposal or withdraw offer that constitutes, or qualifycould reasonably be expected to lead to, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative an Acquisition Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to SunEdison Standalone Acquisition Proposal other than a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);Permitted SunEdison Proposal; or
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or release any Person (other than Sponsor and its Affiliates) from any provision of, or fail to enforce or grant any provision of permission, waiver or request under, any confidentiality or “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indicationobligation, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent confidentiality or similar agreement with a creditor of SunEdison that does not contain a “standstill” or similar obligation, provided that the Company Board shall not be required to take, or be prohibited from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposaltaking, so long as any action taken otherwise required or statement made to so comply is consistent with prohibited under this Section 5.2(asub-clause (iv) or (y) making any required disclosure to the Company Shareholders if the Company Board board of directors of the Company, or the Conflicts Committee, determines in good faith, after consultation with its outside legal counsel, that such action or inaction would reasonably be expected to result in a breach of the directors’ fiduciary duties under applicable Law; or
(v) execute or enter into any letter of intent, agreement in principle, term sheet, memorandum of understanding, merger agreement, acquisition agreement or other similar agreement (other than an Acceptable Confidentiality Agreement) relating to an Acquisition Proposal or a SunEdison Standalone Acquisition Proposal other than a Permitted SunEdison Proposal (an “Alternative Acquisition Agreement”). Notwithstanding anything in the foregoing to the contrary, prior to the time, but not after, the Requisite Company Vote is obtained, 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 that did not result from a breach of this Section 6.3 if the Company has received or receives from the Person so requesting such information an executed confidentiality agreement on terms that are not less restrictive to the other party than those contained in the Confidentiality Agreement (as defined in Section 9.7); it being understood that such confidentiality agreement need not prohibit the making, or amendment, of an Acquisition Proposal and shall not include any term that would prevent the Company from complying with its obligations under this Agreement (any confidentiality agreement satisfying the criteria of this clause (A) being referred to as an “Acceptable Confidentiality Agreement”); and promptly discloses (and, if applicable, provides copies of) any such information to Sponsor to the extent not previously disclosed or provided; and (B) engage or participate in any discussions or negotiations with any Person who has made such a bona fide written Acquisition Proposal; if and only to the extent that, (x) prior to taking any action described in clause (A) or (B) above, the board of directors of the Company and the Conflicts Committee determines in good faith after consultation with its outside legal counsel that failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to result in a Company Alternative Proposal. The Company will promptly breach of the directors’ fiduciary duties under applicable Law, and (and y) in each such case within twenty-four referred to in clause (24A) hours from or (B) above, the date board of this Agreement) request from each Person (directors of the Company and such Person’s Representatives) that the Conflicts Committee has executed a confidentiality agreement determined in connection good faith based on the information then available and after consultation with its consideration of making outside legal counsel and financial advisor that such Acquisition Proposal either constitutes a Company Alternative Superior Proposal to return or destroy (as provided defined below) or is reasonably likely to result in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Persona Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which (i) During the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date term of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXAgreement, except as otherwise set forth in this Section 5.2, the Company Stockholder shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not toto on Stockholder's behalf, in both cases in Stockholder's capacity as a Stockholder of Larscom, directly or indirectly:
, (iA) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly encourage or take any other action to knowingly facilitate any inquiries or knowingly encourage (including by way of furnishing information to any Person in connection with) the making, submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, with respect to a Company Alternative Proposal;
Larscom, (iiB) enter into, continue or otherwise participate in any discussions or negotiations withregarding, furnish to any non-public Person any information relating to the Company with respect to, knowingly assist or participate in any of its Subsidiaries effort or attempt by any Person with respect to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way withwith any proposal or offer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek lead to, any Acquisition Proposal with respect to makeLarscom, or has made, a Company Alternative Proposal (except to notify such Person discussions as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statementthese provisions, (C) recommendapprove, adopt endorse or approve or publicly propose recommend any Acquisition Proposal with respect to recommend, adopt or approve any Company Alternative Proposal Larscom or (D) fail enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative any Acquisition Proposal or transaction contemplated thereby with respect to Larscom.
(ii) Stockholder shall immediately advise Verilink orally, with written confirmation to follow within 48 hours, of any Acquisition Proposal with respect to Larscom or any request for nonpublic information in connection with any such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii)Acquisition Proposal, a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person inquiry with respect to the Company to, or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement Acquisition Proposal with respect to Larscom, the material terms and conditions of any Company Alternative such Acquisition Proposal or with respect to inquiry and the identity of the Person making any indication, proposal such Acquisition Proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personinquiry.
Appears in 1 contract
Sources: Voting Agreement (Verilink Corp)
No Solicitation or Negotiation. Subject to any actions which 10.22.1 From and after the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2Closing Date, the Company Borrowers shall not, and it shall cause its Subsidiaries and its and nor will they authorize or permit any of their respective directors, officers and employees not toor other employees, and contractors, Affiliates or any investment banker, attorney or other advisor, representative or agent retained by it shall use reasonable best efforts (collectively, the “Borrowers’ Representatives”), to cause its other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, encourage or solicit any inquiryinduce the making, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indicationan offer, proposal or inquiry that would reasonably be expected to lead to transaction (whether in the form of a Company Alternative Proposal;
merger, consolidation, asset sale or other form of transaction) for the acquisition of all or any part of the Business (whether by stock sale, asset sale, merger or otherwise) (any of the foregoing, a “Prohibited Acquisition”), (ii) enter into, continue participate or otherwise participate engage in any discussions or negotiations withwith any such Person regarding a Prohibited Acquisition, (iii) furnish to any non-public such Person any information relating to the Company Borrowers or any of its Subsidiaries tothe Business, or afford access to the business, properties, assets, books or records of the Company any Borrower to any such Person that has made or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek to makemake a Prohibited Acquisition, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any other action intended to make assist or facilitate any “moratorium”inquiries or the making of any proposal that constitutes, “control share acquisition”or could reasonably be expected to lead to, “fair price”a Prohibited Acquisition, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waiveapprove, terminateendorse or recommend a Prohibited Acquisition, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option intent or similar agreement contemplating or other agreement providing for or otherwise relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA)Prohibited Acquisition. Nothing contained herein The Borrowers shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately cease immediately and cause to be terminated any and all existing or previously conducted activities, discussions or negotiations, if any, negotiations with any Third Party conducted prior to the date of this Agreement parties with respect to any Company Alternative Proposal Prohibited Acquisition. The Borrowers shall notify the Purchaser with reasonable promptness (but in no event later than two (2) Business Days thereafter) if any such inquiries or proposals are received by, any such information or access is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of them.
10.22.2 From and after the Closing Date through the one year anniversary of the Closing Date, the Borrowers shall not, nor will they authorize or permit any Borrowers’ Representative to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of the incurrence or refinancing of any Indebtedness by any Person other than Purchaser (any of the foregoing, a “Prohibited Financing”), (ii) participate or engage in any discussions or negotiations with respect any such Person regarding a Prohibited Financing, (iii)furnish to any indicationsuch Person any information relating to the Borrowers or the Business, or afford access to the business, properties, assets, books or records of any Borrower to any such Person that has made or could reasonably be expected to make a Prohibited Financing, or (iv) take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes, or inquiry that would could reasonably be expected to lead to, a Prohibited Financing, (v) approve, endorse or recommend a Prohibited Financing, or (vi) enter into any letter of intent or similar agreement contemplating or otherwise relating to a Company Alternative ProposalProhibited Financing. The Company will promptly Borrowers shall immediately cease and cause to be terminated any existing or previously conducted activities, discussions or negotiations with any parties with respect to any Prohibited Financing. The Borrowers shall notify the Purchaser with reasonable promptness (but in no event later than two (2) Business Days thereafter) if any such inquiries or proposals are received by, any such information or access is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of them.
10.22.3 Provided that no Event of Default has occurred and is continuing, from and after the one year anniversary of the Closing Date through the Maturity Date, the Borrowers and the Borrowers’ Representatives may (i) solicit, initiate, encourage or induce the making, submission or announcement of a Prohibited Financing, (ii) participate or engage in any discussions or negotiations with any Person regarding a Prohibited Financing, (iii) furnish to any such Person any information relating to the Borrowers or the Business, or afford access to the business, properties, assets, books or records of any Borrower to any such Person that has made or could reasonably be expected to make a Prohibited Financing, or (iv) take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, a Prohibited Financing, (v) approve, endorse or recommend a Prohibited Financing, or (vi) enter into any letter of intent or similar agreement contemplating or otherwise relating to a Prohibited Financing (any such otherwise Prohibited Financing, a “Permitted Third Party Refinancing”) . The Borrowers shall notify the Purchaser with reasonable promptness (but in no event later than two (2) Business Days thereafter) if any such inquiries or proposals are received by, any such information or access is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of them. Notwithstanding the foregoing, in the event that the Borrowers seek to enter into a Permitted Third Party Refinancing pursuant to this Section 10.22.3, the Borrowers shall first offer to the Purchaser, in writing, a right of first refusal to provide such Permitted Third Party Refinancing on the same terms and conditions as are offered to the Borrowers by a third Person (the “Right of First Refusal”). Any Permitted Third Party Refinancing shall be made subject to the rights and obligations set forth in this Agreement. In the event that the Borrowers offer the Right of First Refusal to the Purchaser, the Purchaser shall promptly, and in each case writing, accept or reject such offer. If the Purchaser shall fail to accept such offer within twenty-four five (245) hours from Business Days after the date Purchaser’s receipt of such written offer, the Borrowers shall be free to complete such Permitted Third Party Refinancing with such Third Person to the extent otherwise permitted under this Agreement) request from each Person (and ; provided, that such Person’s Representatives) Permitted Third Party Refinancing shall close on the Maturity Date; provided, further, that has executed a confidentiality agreement in connection with its consideration of making a Company Alternative Proposal to return or destroy (as provided in the terms proceeds of such confidentiality agreementPermitted Third Party Refinancing shall be used to pay all amounts then outstanding under the Note, the PIK Notes and the other Investment Documents in full in cash. If the Purchaser accepts such offer, the Permitted Refinancing shall close no later than the earlier of (A) all confidential information concerning fifteen (15) Business Days after the Company or any Purchaser’s acceptance and (B) the Maturity Date (the “Purchaser Closing Period”). If such Permitted Third Party Refinancing with the Purchaser does not close within the Purchaser Closing Period, the Purchaser shall no longer have a Right of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted First Refusal with respect to each such Personproposed Permitted Third Party Refinancing.
Appears in 1 contract
Sources: Securities Purchase and Sale Agreement (Caprius Inc)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except Except as otherwise set forth in permitted by this Section 5.25.3, during the Pre-Closing Period, the Company shall will not, and it shall will cause its Subsidiaries and will use its reasonable best efforts to cause its and their respective directors, officers executive officers, employees and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, and the Company will not authorize or knowingly permit any of its or its Subsidiaries’ employees, consultants or other Representatives to, directly or indirectly:
, (i) initiate solicit, initiate, propose or solicit any inquiryinduce the making, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of of, or knowingly encourage, facilitate or assist, any Company Alternative Proposal or any indication, proposal or inquiry that would constitutes, or could reasonably be expected to result in or lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Guarantor, continue Parent, Merger Sub or otherwise participate in any discussions or negotiations with, furnish of their respective designees) any non-public information relating to the Company or any of its Subsidiaries toin connection with or in response to any proposal or inquiry that constitutes, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek result in or lead to, an Acquisition Proposal; (iii) continue or participate or engage in discussions or negotiations, with any Person with respect to makeany proposal or inquiry that constitutes, or has madecould reasonably be expected to result in or lead to, a Company Alternative an Acquisition Proposal (except to notify other than (A) informing such Person as to the existence of the provisions of contained in this Section 5.2);
(iii) (A) fail to make 5.3 or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail contacting such Person or its Representatives to include clarify the Scheme Recommendation in the Scheme Document terms and conditions of any Acquisition Proposal); (iv) approve, endorse, or the Proxy Statement, recommend (C) recommend, adopt or approve or propose publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (do any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(ivwith respect to) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” Acquisition Proposal; or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify execute or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principleAlternative Acquisition Agreement. Immediately following the execution of this Agreement, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shallwill, and shall will cause its Subsidiaries and will use its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other their respective Representatives to, cease immediately and cause to be terminated any and all existing activitiessolicitations, discussions or negotiations, if any, negotiations with any Third Party conducted Person (other than the Parties and their respective Representatives) in connection with any Acquisition Proposal that exists as of the date hereof; and (y) the Company will promptly request each Person (other than the Parties and their respective Representatives) that has prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from the date of this Agreement) request from each Person (and such Person’s Representatives) that has hereof executed a confidentiality agreement in connection with its consideration of making a acquiring the Company Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning furnished to such Person by or on behalf of the Company or any of its Subsidiaries prior to the date hereof and terminate access to any data room maintained by or on behalf of the Company or any of its Subsidiaries. During the Pre-Closing Period, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement to the extent that such provision prohibits or purports to prohibit a confidential Acquisition Proposal being made to the Company Board (or any committee thereof); provided, however, that prior to granting such waiver, the Company Board (or a committee thereof) shall have determined in good faith (after consultation with the Company’s outside financial advisor and legal counsel) that the failure to grant such waiver would reasonably be expected to be inconsistent with the fiduciary duties owed by the Company’s directors under applicable Law; provided, further, that the Company shall promptly (and, in any event, within one (1) Business Day after granting any such waiver) notify Parent and Merger Sub thereof (including the identity of the counterparty). Without limiting the foregoing, it is understood and agreed that any violation of the restrictions contained in each case within twenty-four (24) hours from this Section 5.3 by any of the date Company’s Subsidiaries, or any of the Company’s or its Subsidiaries’ respective Representatives, shall be deemed to be a breach of this Agreement) terminate all physical and electronic data access previously granted to each such PersonSection 5.3 by the Company.
Appears in 1 contract
Sources: Merger Agreement (DallasNews Corp)
No Solicitation or Negotiation. Subject to any actions which (i) During the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date term of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXAgreement, except as otherwise set forth in this Section 5.2, the Company Stockholder shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not toto on Stockholder's behalf, in both cases in Stockholder's capacity as a Stockholder of Larscom, directly or indirectly:
, (iA) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly encourage or take any other action to knowingly facilitate any inquiries or knowingly encourage (including by way of furnishing information to any Person in connection with) the making, submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, with respect to a Company Alternative Proposal;
Larscom, (iiB) enter into, continue or otherwise participate in any discussions or negotiations withregarding, furnish to any non-public Person any information relating to the Company with respect to, knowingly assist or participate in any of its Subsidiaries effort or attempt by any Person with respect to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way withwith any proposal or offer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek lead to, any Acquisition Proposal with respect to makeLarscom, or has made, a Company Alternative Proposal (except to notify such Person discussions as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statementthese provisions, (C) recommendapprove, adopt endorse or approve or publicly propose recommend any Acquisition Proposal with respect to recommend, adopt or approve any Company Alternative Proposal Larscom or (D) fail enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative any Acquisition Proposal or transaction contemplated thereby with respect to Larscom.
(ii) The Stockholder shall immediately advise VINA orally, with written confirmation to follow within 48 hours, of any Acquisition Proposal with respect to Larscom or any request for nonpublic information in connection with any such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii)Acquisition Proposal, a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person inquiry with respect to the Company to, or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement Acquisition Proposal with respect to Larscom, the material terms and conditions of any Company Alternative such Acquisition Proposal or with respect to inquiry and the identity of the Person making any indication, proposal such Acquisition Proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personinquiry.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so Except as to comply with the requirements of the Takeover Rulespermitted by this Section 5.3, from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Offer Acceptance Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not instruct, authorize or knowingly permit any of their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, propose or solicit knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, furnish Merger Sub) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way withsuch case with the intent to induce the making, submission or announcement of, or with the intent to encourage, facilitate or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative an Acquisition Proposal or any indication, inquiries or the making of any proposal or inquiry offer that would could reasonably be expected to lead to a Company Alternative an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal by such Person (or inquiries, proposals or offers or other efforts that could reasonably be expected to lead to an Acquisition Proposal by such Person), in each case other than a Company informing such Persons of the existence of the provisions contained in this Section 5.3; (iv) approve, endorse or recommend an Acquisition Proposal; (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract with respect to an Acquisition Proposal, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract with respect to an Acquisition Proposal, an “Alternative Proposal NDAAcquisition Agreement”). Nothing contained herein shall prevent ; (vi) grant to any Person any waiver, amendment or release under any standstill or confidentiality agreement or any Anti-Takeover Laws unless the Company Board from (xor a committee thereof) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board first determines in good faith, faith (after consultation with its financial advisors and outside legal counsel, ) that the failure to take such action would reasonably be likely to be inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.Law or
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(b), from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not authorize or knowingly permit any of their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
: (i) initiate solicit, initiate, propose or solicit knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, furnish Merger Sub) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries 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, otherwise cooperate in any way with, that constitutes or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek lead to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
an Acquisition Proposal; (iii) (A) fail to make participate or withdraw engage in discussions or qualify, amend or modify in negotiations with any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person Person with respect to the Company an Acquisition Proposal (or any of its Subsidiaries; or
(vi) enter into any agreement in principleinquiries, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement proposals or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry offers that would reasonably be expected to lead to a Company Alternative Proposal (an Acquisition Proposal), in each case, other than informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal solely in order to clarify (but not to engage in negotiations or provide non-public information regarding) the terms or conditions of the Acquisition Proposal that are necessary to determine whether the Acquisition Proposal constitutes a Company Superior Proposal; (iv) approve, endorse or recommend an Acquisition Proposal; (v) approve, endorse or recommend any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL; or (vi) approve, endorse, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (including any “clean team” or similar arrangement), other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Proposal NDAAcquisition Agreement”). Nothing contained herein shall prevent Subject to the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with following two sentences of this Section 5.2(a) or (y) making any required disclosure 5.3(a), and subject to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions terms of Section 5.2(b5.3(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case any event within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.two
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which During the Company is required to take so as to comply with the requirements of the Takeover RulesPre-Closing Period, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2, the Company Seller shall not, and it Seller shall cause its Subsidiaries the Board and its and each of their respective directors, officers Affiliates and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
: (i) initiate solicit, initiate, knowingly induce, knowingly encourage or solicit 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, an Acquisition Proposal; (ii) participate in any discussions or negotiations or cooperate in any way not permitted by this Section 5.6 with any Person regarding any proposal the consummation of which would constitute an Acquisition Proposal; (iii) provide any information or data concerning Seller to any Person in connection with any proposal the consummation of which would constitute an Acquisition 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, an Acquisition Proposal. Seller shall, and Seller shall cause the Board, and each of their respective Representatives to, immediately cease and cause to be terminated any discussions and negotiations with any Person conducted heretofore with respect toto any Acquisition Proposal, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative an Acquisition Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated promptly terminate access by any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect such Person to any Company Alternative Proposal physical or with respect electronic data rooms relating to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative such Acquisition Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bellicum Pharmaceuticals, Inc)
No Solicitation or Negotiation. Subject Other than the Permitted Transactions or as agreed to any actions which in writing by the Company is required to take so as to comply with the requirements parties hereto, none of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2, the Company shall not, and it shall cause its Subsidiaries and its and parties hereto nor their respective officers, directors, officers and employees not toprincipal stockholders, and it shall use reasonable best efforts to cause its other employees, Representatives not toor advisors will, formally or informally, directly or indirectly:
, (i) initiate initiate, solicit or solicit encourage any inquiryinquiry or the submission of any proposal by any Person that constitutes or is reasonably likely to lead to an Acquisition Proposal (as defined below), proposal or offer with respect (ii) engage in negotiations or discussions with, or furnish any information or data to, any Person relating to, or take any other action to knowingly facilitate any inquiries or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement making of any Company Alternative Proposal proposal that constitutes, or any indication, proposal or inquiry that would may reasonably be expected to lead to to, an Acquisition Proposal; provided, however, that STI may negotiate with a Company Alternative Person, other than ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ or an Affiliate of either of them (a "Potential Acquiror"), if (i) the Potential Acquiror has, in circumstances not involving any prior breach by STI of the foregoing provisions, made an Acquisition Proposal;
, (ii) enter into, continue or otherwise participate STI's Board of Directors believes (based in any discussions or negotiations with, furnish any non-public information relating to the Company or any part upon advice of its Subsidiaries toRepresentatives, or afford access and after having an opportunity to discuss any such Acquisition Proposal with the businessPotential Acquiror, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably which contacts shall not be expected to seek to make, or has made, deemed a Company Alternative Proposal (except to notify such Person as to the existence of the provisions violation of this Section 5.2);
(iii5.1.3) (A) fail that such Potential Acquiror has the financial wherewithal to make or withdraw or qualify, amend or modify in any manner adverse to Parent, consummate the Scheme Recommendation or the recommendation Acquisition contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include such Acquisition Proposal and the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any consummation of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type Acquisition contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative such Acquisition Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Specialty Teleconstructors Inc)
No Solicitation or Negotiation. Subject to any actions which the Company is required final two sentences of this Section 5.3(b), and subject to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(c), from the date of this Agreement No-Shop Period Start Date until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause the Company and its Subsidiaries and its and shall not permit their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
, (iA) initiate solicit, initiate, propose or solicit induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to, an Acquisition Proposal; (B) furnish to a Company Alternative Proposal;
any Person (iiother than Parent, Merger Sub or any designees of Parent or Merger Sub) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way withsuch case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative an Acquisition Proposal or any indication, inquiries or the making of any proposal or inquiry offer that would could reasonably be expected to lead to a Company Alternative Proposal an Acquisition Proposal; (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (xC) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken participate or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines engage in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, negotiations with any Third Party conducted prior to the date of this Agreement Person with respect to an Acquisition Proposal (or inquiries, proposals or offers or any Company Alternative Proposal other effort or with respect to any indication, proposal or inquiry attempt that would could reasonably be expected to lead to an Acquisition Proposal), in each case other than informing such Persons of the existence of the provisions contained in this Section 5.3; (D) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement entered into in compliance with Section 5.3(c) (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 (E) agree or resolve to take, or take, any of the actions prohibited by the foregoing clauses (A) through (D). Subject to the following two sentences of this Section 5.3(b), and subject to the terms of Section 5.3(c) and except with respect to an Excluded Party, at the No-Shop Period Start Date, the Company shall immediately, and shall cause each of its Subsidiaries and cause its and their respective Representatives to immediately, (1) cease any solicitations, discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal by such Person or a proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, in each case that exists as of the No-Shop Period Start Date, (2) terminate all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company Alternative Proposal. The Company will with respect to the Transaction and (3) inform the Persons referred to in clauses (1) and (2) of the obligations undertaken in this Section 5.3(b) and promptly (and in each case any event within twenty48 hours of the No-four (24) hours from the date of this AgreementShop Period Start Date) request from each Person (and such Person’s Representatives) other than an Excluded Party that has executed a confidentiality agreement in connection with its consideration of making a Company Alternative 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 Subsidiaries. From the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and shall the Effective Time, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to the Company Board (or any committee thereof) if the Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be inconsistent with its directors’ fiduciary duties under applicable Law; provided, the Company promptly advises Parent in writing within 48 hours of making such determination that it is taking such action and the identity of the party or parties with respect to which it is taking such action. Notwithstanding the foregoing and the occurrence of the No-Shop Period Start Date, the Company and its Affiliates and their respective Representatives may continue to engage in the activities described in Section 5.3(a) with respect to any Excluded Party, including with respect to any amended or modified Acquisition Proposal submitted by any Excluded Party following the No-Shop Period Start Date until the earlier of (and in each case within twenty-four (24x) hours from 12:01 a.m. on the 61st day after the date of this AgreementAgreement (the “Cut-Off Date”) terminate all physical and electronic data access previously granted (y) the time that such Excluded Party ceases to each such Personbe an Excluded Party in accordance with the proviso in the definition thereof and, for clarity, at the earlier of (x) and (y) the provisions of Section 5.3(b) and Section 5.3(c) will apply.
Appears in 1 contract
Sources: Merger Agreement (Cambrex Corp)
No Solicitation or Negotiation. Subject to any actions which the Company is required final sentence of this Section 5.3(a), and subject to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(b), from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not authorize or knowingly permit any of their respective directors, officers officers, employees, investment bankers, attorneys, consultants, accountants and employees not toother advisors and representatives (collectively, and it shall use reasonable best efforts to cause its other Representatives not “Representatives” ) to, directly or indirectly:
, (iA) initiate solicit, initiate, propose or solicit induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to, an Acquisition Proposal; (B) furnish to a Company Alternative Proposal;
any Person (iiother than Parent, Merger Sub or any designees of Parent or Merger Sub) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford to any such Person access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way withsuch case with the intent to induce the making, submission or announcement of, or assist, participate in, to knowingly facilitate encourage or knowingly encourage any effort byfacilitate, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes or could reasonably be expected to lead to an Acquisition Proposal; (C) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (or inquiries, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal), in each case other than informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting such Person making the Acquisition Proposal to the extent necessary to clarify the terms of the Acquisition Proposal; (D) approve, endorse or recommend an Acquisition Proposal; or (E) enter into any letter of intent, 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, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), within two Business Days of the execution of this Agreement the Company shall request the prompt return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person with whom a Company Alternative Proposal confidentiality agreement was entered into at any time within the six month period immediately preceding the date hereof, and shall immediately cease and shall use its reasonable best efforts to cause each of its Subsidiaries and its and their respective Representatives to immediately (x) cease any discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal (or inquiries, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal) by such Person, in each case that exists as of the date of this Agreement and (y) shut off all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company with respect to the Transactions. From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a Company Alternative Proposal NDA). Nothing contained herein shall prevent proposal being made to the Company Board from (xor any committee thereof) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if unless the Company Board determines (or any committee thereof) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law; provided, that . The Company shall be responsible for any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication breach of the type contemplated terms of this Section 5.3(a) or Section 5.3(b) by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Merger Agreement (Kaleyra, Inc.)
No Solicitation or Negotiation. Subject Except as set forth in this Section 6.1, and to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rulesextent permitted by DGCL, from the date of this Agreement until the earlier to occur of (i) the Effective Time and the valid termination of this Agreement pursuant to Article VIII or (ii) the Effective Time, each of Merger Partner and in accordance with Article IX, except as otherwise set forth in this Section 5.2, the Company its Subsidiaries shall not, and it Merger Partner shall cause its Subsidiaries and its and their respective directors, officers officers, employees and employees consultants not to, and it shall use reasonable best efforts to cause instruct its other Representatives attorneys and financial advisors (“Representatives”) not to, directly or indirectly:
(i) solicit, seek, encourage, induce or initiate or solicit any inquiry, proposal or offer with respect to, or knowingly take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) offers, inquiries or the submission or announcement making of any Company Alternative Proposal or any indication, proposal or inquiry offer that constitutes, or would reasonably be expected to lead to a Company Alternative Proposalto, any Acquisition Proposal or Acquisition Inquiry;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations withregarding any Acquisition Proposal or Acquisition Inquiry, or furnish to any Person any non-public information relating to the or afford any Person other than Public Company or any of its Subsidiaries toMerger Partner, or afford as applicable, access to the business, properties, assetssuch party’s property, books or records (except pursuant to a request by a Governmental Entity) in connection with any offers, inquiries or the making of the Company any proposal or any of its Subsidiaries to, otherwise cooperate in any way withoffer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to makelead to, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2)any Acquisition Proposal;
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make the provisions of any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactionsbusiness combination” or “business combination control share acquisition” statute or regulation” or other similar anti-takeover laws and regulations under applicable Law statute or regulation inapplicable to any Third Party or any Company Alternative transactions contemplated by an Acquisition Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(viiv) enter into publicly propose to do any agreement of the foregoing described in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal clauses (other than a Company Alternative Proposal NDAi) through (iii). Nothing contained herein shall prevent Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), prior to the Specified Time, Merger Partner and its Representatives, may (A) furnish non-public information with respect to Public Company Board from and its Subsidiaries to any Qualified Person (x) complying with Rule 14e-2(a) under and the Exchange Act with regard to a Company Alternative ProposalRepresentatives of such Qualified Person), so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (yB) making engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any required disclosure to Qualified Person (and the Company Shareholders if the Company Board Representatives of such Qualified Person) regarding any bona fide, unsolicited written Acquisition Proposal which such party’s board of directors determines in good faith, after consultation with such party’s financial advisors and outside legal counsel, constitutes, or is reasonably likely to result in, a Superior Proposal (and is not withdrawn); provided, (x) that M▇▇▇▇▇ Partner receives from the Qualified Person an executed confidentiality agreement on terms not less restrictive than exist in the Confidentiality Agreement and, if entered into after the date of this Agreement, containing 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) that 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 has determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that actions would reasonably be expected to lead be inconsistent with its fiduciary duties under applicable Law. It is understood and agreed that any violation of the restrictions in this Section 6.1 (or action that, if taken by Merger Partner would constitute such a violation) by any director, officer, attorney, or financial advisor of Merger Partner shall be deemed to be a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from the date breach 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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such PersonSection 6.1 by M▇▇▇▇▇ Partner.
Appears in 1 contract
Sources: Merger Agreement (Datavault AI Inc.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from From the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Company Merger Effective Time, the Company Group shall not, and it shall cause not authorize or permit any of its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
, (iA) initiate solicit, initiate, propose or solicit induce the making, submission or announcement of, or facilitate or assist, or knowingly encourage, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to, an Acquisition Proposal; (B) furnish to a Company Alternative Proposal;
any Person (iiother than the Parent Parties or any designees of the Parent Parties) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, Group or afford to any Person access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries toGroup, otherwise cooperate in any way withsuch case with the intent to induce the making, submission or announcement of, or assist, participate in, knowingly to facilitate or knowingly encourage any effort byencourage, any Third Party proposal or offer that would constitutes or could reasonably be expected to seek to makelead to, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, an Acquisition Proposal; (C) recommend, adopt participate or approve engage in discussions or publicly propose to recommend, adopt or approve negotiations with any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person Person with respect to the Company an Acquisition Proposal (or any of its Subsidiaries; or
(vi) enter into any agreement in principleinquiries, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement proposals or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry offers that would could reasonably be expected to lead to an Acquisition Proposal), in each case other than informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal solely in order to clarify the terms of the Acquisition Proposal that are necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal; (D) approve, endorse or recommend an Acquisition Proposal; or (E) approve, recommend or enter into any letter of intent, 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, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the terms of Section 5.3(b), promptly (and in any event within one Business Day) following the execution of this Agreement, the Company Alternative Proposal Parties shall request the return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person (other than Parent, the Financing Sources and their respective Affiliates or any Person to whom the Company or its Representatives have already furnished such request prior to the date of this Agreement) with whom a confidentiality agreement was entered into at any time prior to the date hereof with respect to an Acquisition Proposal, and shall immediately cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately (x) cease any discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal (or proposals or offers that could reasonably be expected to lead to an Acquisition Proposal) by such Person and (y) shut off all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company Alternative Proposal NDA)with respect to the Transactions. Nothing contained herein shall prevent From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company Merger Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a proposal being made to the Company Board from (xor any committee thereof) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if unless the Company Board determines (or any committee thereof) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Agreement and Plan of Merger (E2open Parent Holdings, Inc.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(b), from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not authorize or permit any of their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, propose or solicit knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, furnish Merger Sub) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries 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, otherwise cooperate in any way with, that constitutes or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek lead to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
an Acquisition Proposal; (iii) (A) fail to make participate or withdraw engage in discussions or qualify, amend or modify in negotiations with any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person Person with respect to the Company an Acquisition Proposal (or any of its Subsidiaries; or
(vi) enter into any agreement in principleinquiries, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement proposals or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry offers that would reasonably be expected to lead to an Acquisition Proposal), in each case, other than informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting the person making the Acquisition Proposal solely in order to clarify (but not to engage in negotiations or provide non-public information) any ambiguous terms and conditions of the Acquisition Proposal that are necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal; (iv) approve, endorse or recommend an Acquisition Proposal; or (v) approve, recommend or enter into, or propose to approve, recommend to enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (including any “clean team” or similar arrangement), other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), promptly (and in any event within two Business Days) following the execution of this Agreement, the Company Alternative Proposal shall request the return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person (other than Parent, the Guarantors, the Financing Sources and their respective Representatives and Affiliates) with whom a confidentiality agreement was entered into at any time prior to the date hereof with respect to an Acquisition Proposal, and shall immediately cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately (x) cease any discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal (or proposals or offers that could reasonably be expected to lead to an Acquisition Proposal) by such Person, in each case that exists as of the date of this Agreement and (y) shut off all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company Alternative Proposal NDA)with respect to the Transaction. Nothing contained herein shall prevent From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a proposal being made to the Company Board from (xor any committee thereof, including the Special Committee) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if unless the Company Board determines (or any committee thereof, including the Special Committee) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so Except as to comply with the requirements of the Takeover Rulesexpressly permitted by this Section 5.3, from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and their respective the directors, officers and employees of it and its Subsidiaries not to, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, propose, induce the making, submission or solicit announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal proposal, indication of interest or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Proton Parent, Merger Sub or otherwise participate in any discussions designees of Parent, Proton Parent or negotiations with, furnish Merger Sub) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or case in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Acquisition Proposal or any indicationinquiry, proposal proposal, indication of interest or inquiry offer that would could reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in or continue discussions or negotiations with any Person relating to an Acquisition Proposal (or inquiries, proposals, indications of interest or offers that could reasonably be expected to lead to an Acquisition Proposal), in each case other than informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal solely in order to clarify the terms of the Acquisition Proposal in connection with determining whether the Acquisition Proposal constitutes a Superior Proposal; (iv) approve, endorse or recommend an Acquisition Proposal; (v) enter into any letter of intent, 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, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Promptly (and in any event within 24 hours) following the execution of this Agreement the Company Alternative Proposal shall request the return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person (other than Parent and its Affiliates) with whom a Company Alternative Proposal NDA). Nothing contained herein shall prevent confidentiality agreement was entered into at any time within the Company Board from (x) complying twelve-month period immediately preceding the date hereof with Rule 14e-2(a) under the Exchange Act with regard respect to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shallpotential Acquisition Transaction, and shall immediately upon the execution hereof cease and shall cause each of its Subsidiaries and each of its and their respective its Subsidiaries’ directors, officers and employees to, to and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, to immediately (x) cease immediately and cause to be terminated any and all existing activitiesdiscussions, discussions communications or negotiations, if any, negotiations with any Third Party conducted prior Person (other than the Parties and their respective Representatives) relating to the date an Acquisition Proposal (or inquiries, proposals, indications of this Agreement with respect to any Company Alternative Proposal interest or with respect to any indication, proposal or inquiry offers that would could reasonably be expected to lead to a Company Alternative an Acquisition Proposal. The Company will promptly (and ) by such Person, in each case within twenty-four (24) hours from that exists as of the date of this AgreementAgreement and (y) request from each shut off all access of any Person (other than the Parties and such Person’s their respective Representatives) that has executed a confidentiality agreement in connection with its consideration of making a Company Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning any electronic data room maintained by the Company with respect to the Transactions or any Acquisition Proposal (or inquiries, proposals, indications of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from interest or offers that could reasonably be expected to lead to an Acquisition Proposal). From the date of this AgreementAgreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall enforce, to the fullest extent permitted under applicable Law, and will not waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a proposal being made to the Company or Company Board (or any committee thereof) terminate all physical unless the Company Board has determined in good faith, after consultation with its financial advisors and electronic data access previously granted outside legal counsel, that failure to each take such Personaction for the purpose of permitting a Person to make a private Acquisition Proposal to the Company Board would be inconsistent with its fiduciary duties under applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Poshmark, Inc.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so (i) Except as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.26.01, until the Company Effective Time or the earlier termination of this Agreement as set forth herein, each of Zircon, Harmony and its respective Subsidiaries shall not, and it shall cause its Subsidiaries each of Zircon and its and their respective directors, officers and employees not to, and it Harmony shall use reasonable best efforts to cause its their respective directors, officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and other Representatives authorized representatives (“Representatives”) not to, directly or indirectly:
(iA) solicit, seek or initiate or solicit any inquiry, proposal or offer with respect to, or knowingly take any action to knowingly facilitate or encourage any offers, inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, or engage, participate in, or knowingly encourage (including by way of furnishing facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to any Person in connection with) the submission with any inquiries, proposals or announcement of any Company Alternative Proposal offers that constitute or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
(iiB) enter into, continue or otherwise participate or engage in any discussions or negotiations withregarding any Acquisition Proposal, or furnish to any Person any non-public information relating to the Company or any of its Subsidiaries to, or afford any Person other than Harmony or Zircon, as applicable, access to the business, properties, assetssuch Party’s property, books or records (except pursuant to a request by a Governmental Entity) in connection with any offers, inquiries or the making of the Company any proposal or any of its Subsidiaries to, otherwise cooperate in any way withoffer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek to makelead to, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2)any Acquisition Proposal;
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make the provisions of any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination takeover statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative transactions contemplated by an Acquisition Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(viD) enter into publicly propose to do any agreement of the foregoing described in principleSection 6.01(a)(i)(A), letter Section 6.01(a)(i)(B) or Section 6.01(a)(i)(C).
(ii) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.01(b), each of intentHarmony and Zircon may (A) furnish non-public information with respect to Harmony and its Subsidiaries or Zircon, term sheetas the case may be, merger agreementto any Qualified Person (and the Representatives of such Qualified Person), acquisition agreement, option agreement or other agreement providing for (B) engage in discussions or relating to a Company Alternative Proposal or negotiations (including solicitation of revised Acquisition Proposals) with any indication, proposal or inquiry Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal; provided that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(aeither Zircon or Harmony (as applicable) under receives from the Exchange Act with regard 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 a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this terms of this Section 5.2(a) or 6.01 (a copy of which shall be provided to the other Party), (y) making any required disclosure the Party seeking to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall make use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement proviso has not otherwise materially breached this Section 6.01 with respect to any Company Alternative such Acquisition Proposal or with respect the Person making such Acquisition Proposal, and (z) the Zircon Board or Harmony Board (as applicable) has determined that taking such actions would be required to prevent a breach of its fiduciary duties under applicable law. It is understood and agreed that any indicationviolation of the restrictions in this Section 6.01 (or action that, proposal if taken by Harmony or inquiry that Zircon, as applicable, would reasonably constitute such a violation) by any Representatives of Harmony or Zircon shall be expected deemed to lead to be a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from the date breach 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 Alternative Proposal to return Section 6.01 by Harmony or destroy (Zircon, as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personapplicable.
Appears in 1 contract
Sources: Merger Agreement (Harmony Energy Technologies Corp)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with terms of Section 5.3(b), during the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2Interim Period, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not authorize or knowingly permit any of their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, propose or solicit knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiryproposal, proposal inquiry or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, furnish Merger Sub) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries 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, inquiry or offer with respect to, otherwise cooperate in any way with, that constitutes or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) with respect to an Acquisition Proposal (or inquiries, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal), in each case, other than only informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal solely in order to clarify any ambiguous terms or conditions of the Acquisition Proposal (but not to engage in negotiations or provide non-public information) that are necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal; (iv) approve, endorse, recommend or enter into, or propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (and joinder thereto or “clean team” or similar agreement) (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 (v) approve, endorse, recommend or declare advisable an Acquisition Proposal. Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), promptly (and in any event within 24 hours) following the execution of this Agreement, the Company Alternative shall request the return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person (other than Parent, the Guarantors, the financing sources and their respective Representatives and Affiliates) with whom a confidentiality agreement was entered into at any time during the 18-month period prior to the date hereof with respect to an Acquisition Proposal, and shall immediately cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately (A) cease any solicitations, discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal NDA)(or inquiries, offers or proposals that could reasonably be expected to lead to an Acquisition Proposal) by any such Person, in each case that exists as of the date of this Agreement and (B) terminate all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company or other diligence access with respect to the Transaction and any Acquisition Proposal. Nothing contained herein shall prevent During the Interim Period, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a proposal being made to the Company Board from (xor any committee thereof) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if unless the Company Board determines (or any committee thereof) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with terms of Section 6.2(c), during the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2Interim Period, the Company shall Group will not, and it shall cause will not instruct, authorize or knowingly permit any of its Subsidiaries and its and their respective directors, officers and employees not Representatives to, and it shall use reasonable best efforts to cause its other Representatives will direct the Company’s directors, officers, outside legal counsel, financial advisors, investment bankers, brokers and similar professional advisors not to, directly or indirectly:
, (iA) initiate solicit, initiate, or solicit propose the making, submission or announcement of, or knowingly induce, encourage, facilitate or assist, any inquiry, offer or proposal or offer with respect tothat constitutes, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to, an Acquisition Proposal, (B) furnish to a Company Alternative Proposal;
any Person (iiother than to Parent and its Affiliates and Representatives) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, Group or afford to any Person access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company or any of Group (other than Parent and its Subsidiaries toAffiliates and Representatives), otherwise cooperate in any way such case, in connection with, or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, participate inany inquiry, knowingly facilitate offer or knowingly encourage any effort by, any Third Party proposal that would reasonably be expected to seek to makeconstitutes, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to, any inquiry, offer or proposal that constitutes an Acquisition Proposal; (C) participate, enter into, or engage in discussions or negotiations with any Person with respect to a Company Alternative an Acquisition Proposal (other than a Company Alternative Proposal NDA). Nothing than, in response to an unsolicited inquiry from any such Persons, solely to inform such Persons of the provisions contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with in this Section 5.2(a) or (y) 6.2 and contacting the Person making any required disclosure the Acquisition Proposal to the Company Shareholders if extent necessary to clarify the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication terms of the type contemplated by Rule 14d-9(fAcquisition Proposal); (D) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionallyapprove, the Company shallendorse, and shall cause its Subsidiaries and its and their respective directorsor recommend any inquiry, officers and employees tooffer or proposal that constitutes, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would could reasonably be expected to lead to, an Acquisition Proposal; (E) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to a Company an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Proposal. The Company will promptly Acquisition Agreement”); or (and in each case within twenty-four (24F) 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 Alternative Proposal propose, resolve, authorize, agree, or commit to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or do any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personforegoing.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which The Company agrees that during the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXPre-Closing Period, except as otherwise set forth in permitted by this Section 5.25.02, neither it nor any Company Subsidiary nor any of the directors and officers of it or any Company shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not toSubsidiary shall, and it shall use its reasonable best efforts to instruct and cause its and each Company Subsidiary’s employees, investment bankers, attorneys, accountants and other Representatives advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:
, (iA) continue any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal or (B) (1) solicit, initiate or solicit any inquiry, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to information) any Person in connection with) inquiries regarding, or the submission or announcement making of any Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes, or could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
, (ii2) enter intoengage in, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries toregarding, or furnish to any other Person any information or afford any Person (other than Parent and its Affiliates) access to the business, properties, assets, books books, records, or records to personnel of the Company or any of its Subsidiaries tothe Company Subsidiaries, otherwise cooperate in any way connection with, or assistfor the purpose of soliciting or encouraging or facilitating, participate in, knowingly facilitate an Acquisition Proposal or knowingly encourage any effort by, any Third Party proposal or offer that would could reasonably be expected to seek lead to makean Acquisition Proposal, (3) approve, adopt, endorse or has maderecommend or enter into any letter of intent, a Company Alternative acquisition agreement, agreement in principle or Contract with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iiiother than an Acceptable Confidentiality Agreement), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv4) take any action to make exempt any Person (other than Parent and its Subsidiaries) from the restrictions on “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactionsbusiness combinations” or “business combination statute any similar provision contained in applicable Takeover Laws or regulation” or the Company’s organizational and other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
governing documents, (v5) modify, waive, terminate, modify amend or fail to enforce release any provision of any “standstill” existing standstill or similar obligation of obligations owed by any person with respect Person to the Company or any of the Company Subsidiaries, or (6) resolve to do or agree to any of the foregoing. Notwithstanding anything to the contrary in this Section 5.02(a) or elsewhere in this Agreement, the Company may waive provisions of any existing standstill applicable to any Person or group (or its Subsidiaries; or
(viRepresentatives) enter into any agreement in principle, letter response to an unsolicited proposal that did not result from a breach of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating this Section 5.02(a) if the Board of Directors determines in good faith after consultation with the Company’s outside counsel that the failure to a Company Alternative Proposal or any indication, proposal or inquiry that do so would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication fiduciary duties of the type contemplated Board of Directors to the Company’s stockholders under applicable Legal Requirements. Other than as specifically permitted by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. AdditionallySection 5.02(b), the Company shall, and shall cause each of its Subsidiaries and direct each of its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately cease immediately and cause to be terminated terminate any and all existing activitiessolicitation, discussions discussion or negotiationsnegotiation heretofore conducted by the Company, if any, any of its Subsidiaries or their respective Representatives with any Third Party conducted prior to the date of this Agreement Person (other than Parent and its Affiliates) with respect to any Company Alternative Proposal or Acquisition Proposal, cease providing any further information with respect to the Company, its Subsidiaries to any indicationsuch Person or its Representatives, proposal terminate access for any such Persons and their Representatives to any physical or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (electronic data room, and in each case within twenty-four (24) hours from promptly, following the date hereof, the Company shall request that all non-public information previously provided by or on behalf 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 Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any of its the Company Subsidiaries and shall promptly (and to any such Person be returned or destroyed in each case within twenty-four (24) hours from accordance with the date applicable confidentiality agreement. The Company agrees any breach of this AgreementSection 5.02(a) terminate all physical and electronic data access previously granted by any of its Representatives (inclusive of actions taken under this Section 5.02(a) that otherwise could not be taken by the Company) will be deemed to each such Personbe a breach of this Agreement by the Company.
Appears in 1 contract
Sources: Merger Agreement (Amber Road, Inc.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so Except as to comply with the requirements of the Takeover Rulesexpressly permitted by this Section 6.2, from the date of this Agreement until the earlier of the Effective Time and (or, if earlier, the valid termination of this Agreement pursuant to and in accordance with Article IXARTICLE VIII), except as otherwise set forth in this Section 5.2, each of the Company and the Company Partnership shall not, and it shall cause its their respective Subsidiaries and each of its and their respective directors, directors and officers and employees not to, and it shall use reasonable best efforts to cause direct its and their other Representatives not to, directly or indirectly:
(i) initiate solicit, initiate, seek, knowingly encourage or solicit knowingly facilitate any Acquisition Proposal or any inquiry, proposal discussion, request or offer with respect that constitutes, or could reasonably be expected to lead to, or take any action to knowingly facilitate or knowingly encourage an Acquisition Proposal (an “Inquiry”) (including by way approving any transaction, or approving any Person acquiring Shares in excess of furnishing the “Ownership Limit” (as defined in the Company Charter));
(ii) enter into, continue, or otherwise participate in any discussions or negotiations with any Person that makes an Inquiry or an Acquisition Proposal regarding any Inquiry or Acquisition Proposal (other than to inform such Person of this Section 6.2(a));
(iii) provide any non-public information concerning the Company or any of its Subsidiaries or afford access to the books and records, officers or employees of the Company or any of its Subsidiaries to any Person in connection withwith any Inquiry or Acquisition Proposal;
(iv) the submission approve or announcement recommend any Acquisition Proposal;
(v) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into any letter of intent, memorandum of understanding, agreement in principle, expense reimbursement agreement, acquisition agreement, merger agreement, option agreement or other definitive agreement with respect to any Company Alternative Acquisition Proposal (other than an Acceptable Confidentiality Agreement), or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal;
(ii) enter into, continue an Acquisition Proposal or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to require the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toPartnership to abandon, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify terminate or fail to enforce any provision of any consummate the transactions contemplated by this Agreement, including the Mergers (an “standstill” or similar obligation of any person with respect to the Company or any of its SubsidiariesAlternative Acquisition Agreement”); or
(vi) enter into resolve, propose or agree to do any of the foregoing. Immediately following the execution of this Agreement (except with respect to clause (iii) of this sentence, which shall occur within forty-eight (48) hours of the execution of this Agreement), each of the Company and the Company Partnership shall, and shall cause their respective Subsidiaries and its and their respective directors and officers to, and direct its and their other Representatives to, immediately (i) cease and cause to be terminated any solicitation, discussions or negotiations with any Person (other than Parent and the Merger Subs, and their respective Representatives) conducted heretofore with respect to any Inquiry or Acquisition Proposal, (ii) terminate all physical and electronic data room access granted to any Person (other than Parent, the Merger Subs, their respective Affiliates, the Debt Financing Sources, the Equity Investors and their respective Representatives) in connection with the transactions contemplated hereby or any Acquisition Proposal and (iii) request that each Person (other than Parent, the Merger Subs, the Equity Investors and their respective Representatives) that has previously executed a confidentiality agreement in principle, letter the last twelve (12) months prior to the date of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or this Agreement and relating to a an Inquiry or Acquisition Proposal promptly return to the Company Alternative or destroy all non-public information previously furnished or made available to such Person or any of its Representatives by or on behalf of the Company, the Company Partnership or their respective Representatives in accordance with the terms of such confidentiality agreement. Each of the Company and the Company Partnership shall not, and shall cause its Subsidiaries not to, release any Person from, or waive, amend or modify any provision of, or grant permission under, any standstill or confidentiality provision with respect to an Acquisition Proposal or any indication, proposal or inquiry Inquiry that would reasonably be expected to lead to a Company Alternative an Acquisition Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent or similar matter in any Contract to which the Company Board or any of its Subsidiaries is a party; provided that nothing in this Agreement shall restrict the Company from (x) complying with Rule 14e-2(a) under the Exchange Act with regard permitting a Person to request a Company Alternative Proposallimited waiver of a “standstill” or similar obligation or from granting such a waiver, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure in each case, to the Company Shareholders if extent necessary to permit such Person to make a non-public Acquisition Proposal to the board of directors of the Company, in each case, solely to the extent the board of directors of the Company Board determines in good faith, faith (after consultation with the Company’s financial advisor and outside legal counsel, ) that the failure to take such action would be inconsistent with the Company directors’ duties under applicable Law; provided, Law or (y) informing any Person that any Company Board Change of Recommendation involving makes an Inquiry or relating to a Company Alternative an Acquisition Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date terms of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative ProposalSection 6.2. The Company will promptly (agrees that all references to the Company or the board of directors of the Company in this Section 6.2 shall include its Representatives, all references to the Company in this Section 6.2, shall include the board of the directors of the Company and in each case within twenty-four (24) hours from the date any breach of this Agreement) request from each Person (and such Person’s Representatives) that has executed a confidentiality agreement in connection with its consideration Section 6.2 by the board of making a Company Alternative Proposal to return or destroy (as provided in the terms directors of such confidentiality agreement) all confidential information concerning the Company or any Representatives of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date Company will be deemed to be a breach of this Agreement) terminate all physical and electronic data access previously granted to each such PersonAgreement by the Company.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so Except as to comply with the requirements of the Takeover Rulespermitted by this Section 5.3, from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Offer Acceptance Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not instruct, authorize or knowingly permit any of their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, propose or solicit knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
; (ii) enter intofurnish to any Person (other than Parent, continue Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, furnish Merger Sub) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way withsuch case with the intent to knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative an Acquisition Proposal or any indication, inquiries or the making of any proposal or inquiry offer that would could reasonably be expected to lead to a Company Alternative an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal by such Person (or inquiries, proposals or offers or other efforts that could reasonably be expected to lead to an Acquisition Proposal by such Person), in each case other than a Company informing such Persons of the existence of the provisions contained in this Section 5.3; (iv) approve, endorse or recommend an Acquisition Proposal; (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract with respect to an Acquisition Proposal, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract with respect to an Acquisition Proposal, an “Alternative Proposal NDAAcquisition Agreement”). Nothing contained herein shall prevent ; (vi) grant to any Person any waiver, amendment or release under any standstill or confidentiality agreement or any Anti-Takeover Laws unless the Company Board from (xor a committee thereof) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board first determines in good faith, faith (after consultation with its financial advisors and outside legal counsel, ) that the failure to take such action would reasonably be likely to be inconsistent with its fiduciary duties under applicable Law; providedor (vii) resolve, that propose or agree to do any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated foregoing. Except as permitted by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionallythis Section 5.3, the Company shall, immediately following the execution of this Agreement, cease and shall terminate and shall, immediately following the execution of this Agreement, cause each of its Subsidiaries and its and their respective directors, officers and employees toSubsidiaries, and shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives totheir respective Representatives, to cease immediately and cause to be terminated terminate (x) any and all existing activitiessolicitations, discussions discussions, communications or negotiations, if any, negotiations with any Third Party conducted prior to Person (other than the date of this Agreement Parties and their respective Representatives) in connection with respect to any Company Alternative an Acquisition Proposal or with respect to any indicationby such Person, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (24) hours from case, that exists as of the date of this Agreement, and (y) request from each all access of any Person (other than the Parties and such Person’s their respective Representatives) that has executed a confidentiality agreement in connection with its consideration of making a Company Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning any electronic data room maintained by the Company with respect to the Transactions or any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personother Acquisition Proposals.
Appears in 1 contract
Sources: Merger Agreement (Potbelly Corp)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXAnaconda agrees that, except as otherwise set forth in expressly permitted by this Section 5.25.4 (including if required under Section 5.4(a) and including as expressly permitted by Section 5.4(e)), the Company it shall not, and it shall cause its the Anaconda Subsidiaries and each of its and their the Anaconda Subsidiaries’ respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its and the Anaconda Subsidiaries’ respective third-party consultants, financial advisors, accountants, legal counsel, investment bankers and other Representatives third party agents, advisors and representatives not to, directly or indirectly:
(i) initiate initiate, solicit, knowingly encourage or solicit any inquiry, proposal or offer with respect to, or take any action to otherwise knowingly facilitate or knowingly encourage (including by way of furnishing information to non-public information) any Person in connection with) inquiries or the submission or announcement making of any Company Alternative Proposal or any indication, proposal or inquiry offer that constitutes, or would reasonably be expected to lead to a Company Alternative to, any Anaconda Competing Proposal;
(ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations withwith any Anaconda Third Party with respect to, furnish any non-public information relating to the Company or in furtherance of any Anaconda Competing Proposal or any of its Subsidiaries toinquiry, proposal or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party offer that would reasonably be expected to seek lead to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2)an Anaconda Competing Proposal;
(iii) (A) fail provide any non-public information or data or access to make the properties, assets or withdraw employees of Anaconda or qualifyits Subsidiaries to any Anaconda Third Party in connection with, amend related to or modify in contemplation of any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Anaconda Competing Proposal or (D) fail any inquiry, proposal or offer that would reasonably be expected to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard lead to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”)an Anaconda Competing Proposal;
(iv) take discuss with any action Anaconda Third Party, approve or recommend, or propose to make any “moratorium”discuss, “control share acquisition”approve or recommend, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute execute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement providing for or agreement, in each case of the foregoing relating to a Company Alternative an Anaconda Competing Proposal or any indicationinquiry, proposal or inquiry offer, in each case of the foregoing that would reasonably be expected to lead to a Company Alternative an Anaconda Competing Proposal (other than a Company Alternative confidentiality agreement as provided in Section 5.4(e)(i) entered into in compliance with Section 5.4(e)(i)); or
(v) submit any Anaconda Competing Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if vote of the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable LawAnaconda Shareholders; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior notwithstanding anything to the date of contrary in this Agreement with respect to any Company Alternative Proposal or with respect to any indicationSection 5.4, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company Anaconda or any of its Subsidiaries and shall promptly (and Representatives may, in each case within twenty-four (24) hours response to an unsolicited inquiry or proposal from an Anaconda Third Party, inform an Anaconda Third Party or its Representative of the date restrictions imposed by the provisions of this Agreement) terminate all physical and electronic data access previously granted Section 5.4 (without conveying, requesting or attempting to each such Persongather any other information except as otherwise specifically permitted hereunder).
Appears in 1 contract
Sources: Transaction Agreement (Livent Corp.)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements terms of the Takeover RulesSection 5.3(b), from the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Article VIII and in accordance with Article IX, except as otherwise set forth in this Section 5.2the Effective Time, the Company and its Subsidiaries shall not, and it shall cause its Subsidiaries and its and not authorize or permit any of their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not acting on their behalf to, directly or indirectly:
, (i) initiate solicit, initiate, propose or solicit knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal or offer with respect to, that constitutes or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish including by providing any non-public information relating to the Company or any of its Subsidiaries to, or afford affording access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries 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, otherwise cooperate in any way with, that constitutes or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek lead to makean Acquisition Proposal; (ii) participate or engage in, enter into, continue or has madeotherwise participate in, a Company Alternative Proposal any discussions or negotiations with any Person (except and their respective Representatives, including potential financing sources of such Person) with respect to notify any Acquisition Proposals (or inquiries, proposals or offers or any other effort or attempt that could reasonably be expected to lead to an Acquisition Proposal), in each case, other than informing such Person as to Persons of the existence of the provisions of contained in this Section 5.2);
5.3 and contacting the Person making the Acquisition Proposal solely in order to clarify (iiibut not to engage in negotiations or provide non-public information) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any ambiguous terms and conditions of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action Acquisition Proposal that are necessary to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” determine whether the Acquisition Proposal constitutes or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Superior Proposal; (iii) otherwise cooperate with or assist or participate in or facilitate the making of any Acquisition Proposal, including granting a waiver, amendment or release under any pre-existing standstill or similar provision to the extent necessary to allow for an Acquisition Proposal or amendment to an Acquisition Proposal to be made to the Company or the Company Board; (iv) approve, endorse or recommend an Acquisition Proposal; or (v) approve, recommend or enter into, or propose to approve, recommend to enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (including any “clean team” or similar arrangement), other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Proposal Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), reasonably promptly (and in any event within two Business Days) following the date of this Agreement, (x) the Company shall request the return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person (other than Parent, the Guarantors, the Financing Sources and their respective Representatives and Affiliates) with whom a confidentiality agreement was entered into at any time prior to the date hereof with respect to an Acquisition Proposal, and (y) the Company Alternative shall, and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to, (a) cease any discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal NDA)(or proposals or offers that could reasonably be expected to lead to an Acquisition Proposal) by such Person, in each case that exists as of the date of this Agreement and (b) shut off all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company with respect to the Transactions. Nothing contained herein shall prevent From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a proposal being made to the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if unless the Company Board determines has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
No Solicitation or Negotiation. Subject to any actions which During the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXPre-Closing Period, except as otherwise set forth in expressly permitted by this Section 5.25.4, the Company Parent shall not, and it Parent shall cause its Subsidiaries and its and direct their respective directors, officers and employees not to, and it shall use reasonable best efforts Representatives to cause its other Representatives not tonot, directly or indirectly:
(i) initiate solicit, initiate, induce or solicit knowingly encourage or facilitate, any inquiry, inquiries or the making of any proposal or offer with respect that constitutes, or could reasonably be expected to lead to, a Parent Acquisition Proposal;
(ii) participate in any discussions or take any action to knowingly facilitate negotiations or knowingly encourage cooperate in any way with any Person regarding any proposal or offer, the consummation of which would constitute a Parent Acquisition Proposal; provided that Parent and ▇▇▇▇▇▇’s Representatives, in response to an unsolicited inquiry or proposal from a third party, may inform such third party of the provisions of this Section 5.4;
(including by way iii) knowingly provide any non-public information or data concerning Parent or any of furnishing information its Subsidiaries to any Person in connection withwith any proposal, the consummation of which would constitute a Parent Acquisition Proposal or for the purpose of soliciting, initiating, inducing or knowingly encouraging or facilitating a Parent Acquisition Proposal;
(iv) the submission enter into any binding or announcement nonbinding letter of any Company Alternative 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 (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.4(b)) with respect to a Parent Acquisition Proposal or any indication, proposal or inquiry offer that would could reasonably be expected to lead to a Company Alternative Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Parent Acquisition Proposal;
(v) waiveadopt, terminateapprove or recommend or make any public statement approving or recommending any inquiry, modify proposal or fail offer that constitutes, or could reasonably be expected to enforce lead to, a Parent Acquisition Proposal (including by approving any provision 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 “standstillbusiness combinations” or any similar obligation of any person with respect to the Company provision contained in applicable takeover laws or any of its SubsidiariesParent’s organizational or other governing documents; or
(vivii) enter into resolve, publicly propose or agree to do any agreement in principleof the foregoing. Parent shall, letter of intentand shall cause its Subsidiaries and direct their respective Representatives to, term sheetimmediately cease and cause to be terminated any solicitation, merger agreementencouragement, acquisition agreementdiscussions and negotiations with any Person conducted heretofore with respect to any Parent Acquisition Proposal, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative 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. As soon as reasonably practicable after the date of this Agreement, Parent shall deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making a Parent Acquisition Proposal since January 1, 2023, 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 destruction of all confidential information previously 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 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 Alternative Parent Acquisition Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders except that if the Company Parent Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action grant any waiver or release would be inconsistent with the Parent directors’ fiduciary duties under applicable law, Parent may waive any such standstill provision solely to the extent necessary in order to permit the Parent Board to comply with its fiduciary duties under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from (a) ISI agrees that between the date of this Agreement until and the earlier of (i) the Effective effective Time and (ii) the valid termination of this Agreement pursuant to and in accordance with Article IXAgreement, except as otherwise set forth in this Section 5.2none of ISI, ISC, the Company shall notSubsidiaries, and it shall cause its Subsidiaries and its and the Ventures nor any of their respective Affiliates, officers, directors, officers representatives or agents will (a) solicit, initiate, encourage or accept any other proposals or offers from any Person relating to any Acquisition Proposal or (b) participate in any discussions, conversations, negotiations and employees not toother communications regarding, and it shall use reasonable best efforts or furnish to cause its any other Representatives not to, directly or indirectly:
(i) initiate or solicit Person any inquiry, proposal or offer information with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withway, assist or assist, participate in, knowingly facilitate or knowingly encourage any effort by, or attempt by any Third Party that would reasonably be expected other Person to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in consummate any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Acquisition Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein ISI immediately shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiationsconversations, if any, negotiations and other communications with any Third Party Persons conducted prior to the date of this Agreement heretofore with respect to any Company Alternative of the foregoing. ISI shall notify Ispat promptly if any inquiry or other contact with any Person with respect to an Acquisition Proposal is made and shall indicate the identity of the Person making such Acquisition Proposal, inquiry or contact and the terms and conditions of such Acquisition Proposal, inquiry or other contact. ISI agrees during the period provided for in the first sentence of this Section 5.06 not to, and to cause ISC, each Subsidiary and each Venture not to, without the prior written consent of Ispat, release any Person from, or waive any provision of, any confidentiality or standstill agreement to which ISI, ISC, any Subsidiary or any Venture is a party which would be applicable to an Acquisition Proposal.
(b) Except as expressly permitted by this Section 5.06, neither the Board of Directors of ISI nor any committee thereof shall (i) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (ii) cause ISI or ISC to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Acquisition Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Merger Agreement (Inland Steel Co)
No Solicitation or Negotiation. Subject to any actions which the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXLion agrees that, except as otherwise set forth in expressly permitted by this Section 5.25.3 (including if required under Section 5.3(a) and including as expressly permitted by Section 5.3(e)), the Company it shall not, and it shall cause its the Lion Subsidiaries and each of its and their the Lion Subsidiaries’ respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its and the Lion Subsidiaries’ respective third-party consultants, financial advisors, accountants, legal counsel, investment bankers and other Representatives third party agents, advisors and representatives not to, directly or indirectly:
(i) initiate initiate, solicit, knowingly encourage or solicit any inquiry, proposal or offer with respect to, or take any action to otherwise knowingly facilitate or knowingly encourage (including by way of furnishing information to non-public information) any Person in connection with) inquiries or the submission or announcement making of any Company Alternative Proposal or any indication, proposal or inquiry offer that constitutes, or would reasonably be expected to lead to a Company Alternative to, any Lion Competing Proposal;
(ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations withwith any Lion Third Party with respect to, furnish any non-public information relating to the Company or in furtherance of any Lion Competing Proposal or any of its Subsidiaries toinquiry, proposal or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party offer that would reasonably be expected to seek lead to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2)Lion Competing Proposal;
(iii) (A) fail provide any non-public information or data or access to make the properties, assets or withdraw employees of Lion or qualifyits Subsidiaries to any Lion Third Party in connection with, amend related to or modify in contemplation of any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Lion Competing Proposal or (D) fail any inquiry, proposal or offer that would reasonably be expected to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard lead to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”)Lion Competing Proposal;
(iv) take approve any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Lion Third Party or any Company Alternative Proposalbecoming an “interested stockholder” under Section 203 of the Delaware Code;
(v) waivediscuss with any Lion Third Party, terminateapprove or recommend, modify or fail propose to enforce any provision of any “standstill” discuss, approve or similar obligation of any person with respect to the Company recommend, or any of its Subsidiaries; or
(vi) execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement providing for or agreement, in each case of the foregoing relating to a Company Alternative Lion Competing Proposal or any indicationinquiry, proposal or inquiry offer, in each case of the foregoing that would reasonably be expected to lead to a Company Alternative Lion Competing Proposal (other than a Company Alternative confidentiality agreement as provided in Section 5.3(e)(ii) entered into in compliance with Section 5.3(e)(ii)); or
(vi) submit any Lion Competing Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if vote of the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable LawLion Stockholders; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior notwithstanding anything to the date of contrary in this Agreement with respect to any Company Alternative Proposal or with respect to any indicationSection 5.3, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company Lion or any of its Subsidiaries and shall promptly (and Representatives may, in each case within twenty-four (24) hours response to an unsolicited inquiry or proposal from a Lion Third Party, inform a Lion Third Party or its Representative of the date restrictions imposed by the provisions of this Agreement) terminate all physical and electronic data access previously granted Section 5.3 (without conveying, requesting or attempting to each such Persongather any other information except as otherwise specifically permitted hereunder).
Appears in 1 contract
Sources: Transaction Agreement (Livent Corp.)
No Solicitation or Negotiation. Subject to any actions which 10.22.1 From and after the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in this Section 5.2Closing Date, the Company Borrowers shall not, and it shall cause its Subsidiaries and its and nor will they authorize or permit any of their respective directors, officers and employees not toor other employees, and contractors, Affiliates or any investment banker, attorney or other advisor, representative or agent retained by it shall use reasonable best efforts (collectively, the “Borrowers’ Representatives”), to cause its other Representatives not to, directly or indirectly:
, (i) initiate solicit, initiate, encourage or solicit any inquiryinduce the making, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indicationan offer, proposal or inquiry that would reasonably be expected to lead to transaction (whether in the form of a Company Alternative Proposal;
merger, consolidation, asset sale or other form of transaction) for the acquisition of all or any part of the Business (whether by stock sale, asset sale, merger or otherwise) (any of the foregoing, a “Prohibited Acquisition”), (ii) enter into, continue participate or otherwise participate engage in any discussions or negotiations withwith any such Person regarding a Prohibited Acquisition, (iii) furnish to any non-public such Person any information relating to the Company Borrowers or any of its Subsidiaries tothe Business, or afford access to the business, properties, assets, books or records of the Company any Borrower to any such Person that has made or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek to makemake a Prohibited Acquisition, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any other action intended to make assist or facilitate any “moratorium”inquiries or the making of any proposal that constitutes, “control share acquisition”or could reasonably be expected to lead to, “fair price”a Prohibited Acquisition, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waiveapprove, terminateendorse or recommend a Prohibited Acquisition, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option intent or similar agreement contemplating or other agreement providing for or otherwise relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA)Prohibited Acquisition. Nothing contained herein The Borrowers shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately cease immediately and cause to be terminated any and all existing or previously conducted activities, discussions or negotiations, if any, negotiations with any Third Party conducted prior to the date of this Agreement parties with respect to any Company Alternative Proposal Prohibited Acquisition. The Borrowers shall notify the Purchaser with reasonable promptness (but in no event later than two (2) Business Days thereafter) if any such inquiries or proposals are received by, any such information or access is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of them.
10.22.2 From and after the Closing Date through the one year anniversary of the Closing Date, the Borrowers shall not, nor will they authorize or permit any Borrowers’ Representative to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of the incurrence or refinancing of any Indebtedness by any Person other than Purchaser (any of the foregoing, a “Prohibited Financing”), (ii) participate or engage in any discussions or negotiations with respect any such Person regarding a Prohibited Financing, (iii) furnish to any indicationsuch Person any information relating to the Borrowers or the Business, or afford access to the business, properties, assets, books or records of any Borrower to any such Person that has made or could reasonably be expected to make a Prohibited Financing, or (iv) take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes, or inquiry that would could reasonably be expected to lead to, a Prohibited Financing, (v) approve, endorse or recommend a Prohibited Financing, or (vi) enter into any letter of intent or similar agreement contemplating or otherwise relating to a Company Alternative ProposalProhibited Financing. The Company will promptly Borrowers shall immediately cease and cause to be terminated any existing or previously conducted activities, discussions or negotiations with any parties with respect to any Prohibited Financing. The Borrowers shall notify the Purchaser with reasonable promptness (but in no event later than two (2) Business Days thereafter) if any such inquiries or proposals are received by, any such information or access is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of them.
10.22.3 Provided that no Event of Default has occurred and is continuing, from and after the one year anniversary of the Closing Date through the Maturity Date, the Borrowers and the Borrowers’ Representatives may (i) solicit, initiate, encourage or induce the making, submission or announcement of a Prohibited Financing, (ii) participate or engage in any discussions or negotiations with any Person regarding a Prohibited Financing, (iii) furnish to any such Person any information relating to the Borrowers or the Business, or afford access to the business, properties, assets, books or records of any Borrower to any such Person that has made or could reasonably be expected to make a Prohibited Financing, or (iv) take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, a Prohibited Financing, (v) approve, endorse or recommend a Prohibited Financing, or (vi) enter into any letter of intent or similar agreement contemplating or otherwise relating to a Prohibited Financing (any such otherwise Prohibited Financing, a “Permitted Third Party Refinancing”) . The Borrowers shall notify the Purchaser with reasonable promptness (but in no event later than two (2) Business Days thereafter) if any such inquiries or proposals are received by, any such information or access is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of them. Notwithstanding the foregoing, in the event that the Borrowers seek to enter into a Permitted Third Party Refinancing pursuant to this Section 10.22.3, the Borrowers shall first offer to the Purchaser, in writing, a right of first refusal to provide such Permitted Third Party Refinancing on the same terms and conditions as are offered to the Borrowers by a third Person (the “Right of First Refusal”). Any Permitted Third Party Refinancing shall be made subject to the rights and obligations set forth in this Agreement. In the event that the Borrowers offer the Right of First Refusal to the Purchaser, the Purchaser shall promptly, and in each case writing, accept or reject such offer. If the Purchaser shall fail to accept such offer within twenty-four five (245) hours from Business Days after the date Purchaser’s receipt of such written offer, the Borrowers shall be free to complete such Permitted Third Party Refinancing with such Third Person to the extent otherwise permitted under this Agreement) request from each Person (and ; provided, that such Person’s Representatives) Permitted Third Party Refinancing shall close on the Maturity Date; provided, further, that has executed a confidentiality agreement in connection with its consideration of making a Company Alternative Proposal to return or destroy (as provided in the terms proceeds of such confidentiality agreementPermitted Third Party Refinancing shall be used to pay all amounts then outstanding under the Note, the PIK Notes and the other Investment Documents in full in cash. If the Purchaser accepts such offer, the Permitted Refinancing shall close no later than the earlier of (A) all confidential information concerning fifteen (15) Business Days after the Company or any Purchaser’s acceptance and (B) the Maturity Date (the “Purchaser Closing Period”). If such Permitted Third Party Refinancing with the Purchaser does not close within the Purchaser Closing Period, the Purchaser shall no longer have a Right of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted First Refusal with respect to each such Personproposed Permitted Third Party Refinancing.
Appears in 1 contract
Sources: Securities Purchase and Sale Agreement (Vintage Capital Group, LLC)
No Solicitation or Negotiation. Subject (a) The Company acknowledges that neither it, nor any of its Company Representatives, are engaged in any discussions or negotiations with any Person with respect to any actions which the Company an Acquisition Proposal and confirms that it has complied with, and is required to take so in current compliance with, its standstill obligations as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IX, except as otherwise set forth in the Exclusivity Letter. Except as otherwise permitted by this Section 5.24.11, the Company shall not, and it shall cause not authorize or permit its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Company Representatives not 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 Article VI: (i) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, or take any action to knowingly facilitate or knowingly encourage the making of an Acquisition Proposal; or (including by way of furnishing information ii) (A) furnish or disclose to any Person non-public information with respect to an Acquisition Proposal; (B) negotiate or engage in connection withdiscussions with any Person with respect to an Acquisition Proposal; or (C) enter into or amend or grant any waiver or release under any Contract (whether or not binding) or agreement in principle with respect to an Acquisition Proposal.
(b) Except as otherwise permitted by this Section 4.11 or unless the submission cancellation of, or announcement removal of this Agreement from consideration at, the Company Shareholder Meeting is mandated by NRS 92A.120, the Company Board shall not: (i) withdraw, amend, modify or qualify, or publicly propose to withdraw, amend, modify or qualify in a manner adverse to Parent or MergerSub, its Board Recommendation; (ii) approve, recommend, or fail to recommend against, or publicly propose to approve or recommend, any Acquisition Proposal; (iii) make any public statement inconsistent with its recommendation that the Shareholders approve this Agreement and the Merger; (iv) fail to include its Board Recommendation to the Shareholders in the Proxy Statement; or (v) enter into any Contract (whether or not binding) or agreement in principle with respect to any Acquisition Proposal (any of the foregoing listed in (i), (ii), (iii) or (iv), an “Adverse Recommendation” and (v), an “Adverse Acquisition Agreement”).
(c) Notwithstanding Sections 4.11(a) and 4.11(b), prior to the receipt of the Required Approval, including during a Fiduciary Out Notice Period, the Company Alternative Board, directly or indirectly through any Representative, may, but subject to Sections 4.11(d) and 4.11(e): (i) participate in negotiations or discussions with any third-party that has made (and not withdrawn) a bona fide and unsolicited Acquisition Proposal or any indication, proposal or inquiry that did not result from violation of this Section 4.11 and that would reasonably be expected to lead to a Company Alternative Superior Proposal (a “Qualified Acquisition Proposal;
”); (ii) enter into, continue or otherwise participate in any discussions or negotiations with, thereafter furnish any to such third party non-public information relating to the Company or any of its Subsidiaries to, or afford access pursuant to an executed confidentiality agreement containing terms no less favorable to the businessCompany, propertiesin the aggregate, assetsas reasonably determined by the Company, books or records than those set forth in the Confidentiality Agreement, except that each such confidentiality agreement will permit the sharing of information by the Company to Parent as contemplated by this Agreement (a copy of such confidentiality agreement shall be promptly provided to Parent (in all events within thirty-six (36) hours)); (iii) following receipt of and on account of a Qualified Acquisition Proposal that the Company Board determines in good faith after consultation with its outside legal counsel and financial advisor constitutes a Superior Proposal, make an Adverse Recommendation and/or enter into an Adverse Acquisition Agreement; and/or (iv) take any action that any court of competent jurisdiction orders the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal take (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iiiwhich order remains unstayed), if applicable, (B) fail but in each case referred to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, foregoing clauses (Ci) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or through (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iiiiv), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, that any which shall be deemed to include its obligations under NRS 92A.120.
(d) The Company Board Change shall not take any of Recommendation involving or relating the actions referred to a in clauses (i) through (iv) of Section 4.11(c) unless the Company Alternative Proposal may only be made in accordance complies with the provisions of this Section 5.2(b4.11(d). The Company shall notify Parent promptly (but in no event later than thirty-six (36) hours) after the receipt by the Company (or any Company Representative) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third-party, in each case, in connection with an Acquisition Proposal. In such notice, the Company shall: (i) identify the third-party making the Acquisition Proposal and (ii) provide a summary of the material terms and conditions of the Acquisition Proposal, or indication or request. The Company shall notify Parent as soon as reasonably practicable (and in any event within thirty-six (36) hours) of any changes to the material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent (and in no event later than thirty-six (36) hours after such information is provided to them) with copies of any non-public information concerning the Business and the Company’s present or future performance, financial condition or results of operations, provided to any third party, to the extent such information has not been previously provided to Parent.
(e) Notwithstanding Section 4.11(b), at any time prior to the receipt of the Required Approval, the Company Board may make an Adverse Recommendation or terminate this Agreement pursuant to Section 5.2(c6.1(g) in order to enter into an Adverse Acquisition Agreement, if: (i) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisor that a Qualified Acquisition Proposal constitutes a Superior Proposal, (ii) the Company promptly notifies Parent, in writing, at least four (4) Business Days (the “Fiduciary Out Notice Period”) before taking such action of its intention to take such action with respect to the Qualified Acquisition Proposal, which notice shall state expressly that the Company has received a Qualified Acquisition Proposal that the Board has determined constitutes a Superior Proposal and that the Company Board intends to make an Adverse Recommendation or terminate this Agreement pursuant to Section 6.1(g); (iii) the Company attaches to such notice the most current version of the proposed agreement with respect to (which version shall be updated on a prompt basis), and the identity of the third-party making, such Qualified Acquisition Proposal; (iv) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, during the Fiduciary Out Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Qualified Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Fiduciary Out Notice Period, there is any material revision to the terms of the Qualified Acquisition Proposal, including, any revision in price, the Fiduciary Out Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Fiduciary Out Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (v) the Company Board determines in good faith, after consulting with outside legal counsel and its financial advisor, that in the case of a Qualified Acquisition Proposal, such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Fiduciary Out Notice Period in the terms and conditions of this Agreement, including pursuant to clause (e)(iv) of this Section 5.2(d4.11. During the Fiduciary Out Notice Period, the Company shall be permitted to take the actions set forth in Sections 4.11(c)(i) and (ii) in respect of the Person that submitted such Qualified Acquisition Proposal.
(f) Nothing contained in this Section 5.2(e). For clarity4.11 shall be deemed to prohibit the Company or the Company Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law with regard to an Acquisition Proposal, including talking and disclosing to its Shareholders a position contemplated by Rule 14d-9, Rule 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure to disclose would reasonably be expected to be inconsistent with its obligations under applicable Law or (iii) making accurate disclosure to the Shareholders of any factual information regarding the business, financial condition or results of operations of the Company or its Subsidiaries; provided, however, that nothing in this Section 4.11(f) shall permit the Company to make an Adverse Recommendation (including in compliance with Rule 14e-2, Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or other applicable Law) without complying with Sections 4.11(d) and 4.11(e) and, for the avoidance of doubt, any such disclosure described in clauses (i) and (ii) that does not reaffirm the Board Recommendation (other than a “stop, look and listen” disclosure communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act Act) shall not constitute a Company Board Change of an Adverse Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Merger Agreement (Liberator Medical Holdings, Inc.)
No Solicitation or Negotiation. Subject to any actions which During the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXPre-Closing Period, except as otherwise set forth in expressly permitted by this Section 5.25.3, the Company Parent shall not, and it Parent shall cause its Subsidiaries and its and their respective Subsidiaries’ directors, officers and employees not to, and it shall use reasonable best efforts to cause its other and their respective Representatives not to, directly or indirectly:
(i) initiate solicit, initiate, induce, knowingly encourage or solicit 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 could reasonably be expected to lead to, a Parent Acquisition Proposal;
(ii) participate in any discussions or negotiations or cooperate in any way with any Person regarding any Parent Acquisition Proposal or any inquiry, proposal or offer with respect to, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Parent Acquisition Proposal;
(iiiii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish provide any non-public information relating to the Company or data concerning Parent or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate Person in any way connection with, or assistfor the purpose of soliciting, participate ininitiating, knowingly facilitate inducing, encouraging or knowingly encourage any effort byfacilitating, any Third Party Parent Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard lead to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”)Parent Acquisition Proposal;
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, 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 providing for with respect to, or relating that could reasonably be expected to lead to, a Parent Acquisition Proposal (other than an Acceptable Company Alternative Proposal Confidentiality Agreement entered into in accordance with Section 5.3(b));
(v) adopt, approve, declare advisable or recommend or make any indicationpublic statement approving or recommending any inquiry, proposal or inquiry offer that would 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
(vii) resolve, publicly propose or agree to do any of the foregoing. Parent shall, and shall cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Parent Acquisition Proposal, or inquiry, proposal or offer that could reasonably be expected to lead to a Company Alternative 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. Parent shall (i) as soon as reasonably practicable after the date of this Agreement (and in all events no later than three Business Days), deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making a 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 destruction of all confidential information previously furnished to such Person by or on behalf of Parent relating to any Parent Acquisition Proposal (and Parent shall use its commercially reasonable efforts to have such information returned or destroyed) and 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 a the Company Alternative Proposal NDAand its Representatives) from having access to any physical or electronic data room relating to any possible Parent Acquisition Proposal. Parent 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 the Company). Nothing contained herein Parent shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard 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 Alternative Parent Acquisition Proposal, so long as unless in any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to such case the Company Shareholders if the Company Parent Board determines shall have determined, in good faith, after consultation with outside legal counsel, that the failure to take such action actions would be inconsistent with the fiduciary duties of the Parent Board to the holders of Parent capital stock under applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Proposal or with respect to any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Person.
Appears in 1 contract
Sources: Merger Agreement (SomaLogic, Inc.)
No Solicitation or Negotiation. Subject to any actions which (i) During the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date term of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXAgreement, except as otherwise set forth in this Section 5.2, the Company Stockholder shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not toto on Stockholder's behalf, in both cases in Stockholder's capacity as a Stockholder of VINA, directly or indirectly:
, (iA) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly encourage or take any other action to knowingly facilitate any inquiries or knowingly encourage (including by way of furnishing information to any Person in connection with) the making, submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, with respect to a Company Alternative Proposal;
VINA, (iiB) enter into, continue or otherwise participate in any discussions or negotiations withregarding, furnish to any non-public Person any information relating to the Company with respect to, knowingly assist or participate in any of its Subsidiaries effort or attempt by any Person with respect to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way withwith any proposal or offer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek lead to, any Acquisition Proposal with respect to makeVINA, or has made, a Company Alternative Proposal (except to notify such Person discussions as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statementthese provisions, (C) recommendapprove, adopt endorse or approve or publicly propose recommend any Acquisition Proposal with respect to recommend, adopt or approve any Company Alternative Proposal VINA or (D) fail enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative any Acquisition Proposal or transaction contemplated thereby with respect to VINA.
(ii) Stockholder shall immediately advise Larscom orally, with written confirmation to follow within 48 hours, of any Acquisition Proposal with respect to VINA or any request for nonpublic information in connection with any such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii)Acquisition Proposal, a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person inquiry with respect to the Company to, or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement Acquisition Proposal with respect to VINA, the material terms and conditions of any Company Alternative such Acquisition Proposal or with respect to inquiry and the identity of the Person making any indication, proposal such Acquisition Proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personinquiry.
Appears in 1 contract
Sources: Voting Agreement (Larscom Inc)
No Solicitation or Negotiation. Subject to any actions which At all times during the Company is required to take so as to comply period commencing with the requirements of the Takeover Rules, from the date execution and delivery of this Agreement and continuing until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to ARTICLE VII and in accordance with Article IXthe Closing, except as otherwise set forth in expressly permitted by this Section 5.24.10, the Company shall not, Debtor and it shall cause its Subsidiaries and its and their its Subsidiaries’ respective directors, officers and employees not toshall not, and it the Debtor shall use reasonable best efforts to cause direct its other Representatives agents and representatives not to, directly or indirectly:
(i) initiate initiate, solicit, propose or solicit knowingly encourage or otherwise knowingly facilitate any inquiry, inquiry or the making of any proposal or offer with respect tothat constitutes or, or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information to any Person in connection with) the submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Company Alternative to, an Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, a Company Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal or in connection with such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person with respect to the Company or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Acquisition Proposal or any indicationinquiry, proposal or inquiry offer that would reasonably be expected to lead to a Company Alternative an Acquisition Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent to state that the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with terms of this Section 5.2(a4.10 prohibit such discussions);
(iii) provide any non-public information or (y) making any required disclosure data concerning the Debtor or its Subsidiaries, or access to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving Debtor or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives toproperties, cease immediately books and cause records to be terminated any and all existing activitiesPerson, discussions or negotiationsin each case, if any, in connection with any Third Party conducted prior to the date of this Agreement with respect to any Company Alternative Acquisition Proposal or with respect to any indicationinquiry, proposal or inquiry offer that constitutes or would reasonably be expected to lead to a Company an Acquisition Proposal;
(iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal;
(v) approve or recommend or publicly declare advisable any Acquisition Proposal or proposal reasonably expected to lead to an Acquisition Proposal or 41 approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Proposal. The Company will promptly Acquisition Agreement;
(and in each case within twenty-four vi) execute or enter into an Alternative Acquisition Agreement; or
(24vii) 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 Alternative Proposal agree, authorize or commit to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or do any of its Subsidiaries and shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personforegoing.
Appears in 1 contract
Sources: Plan Sponsor Agreement
No Solicitation or Negotiation. Subject to any actions which (i) During the Company is required to take so as to comply with the requirements of the Takeover Rules, from the date term of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article IXAgreement, except as otherwise set forth in this Section 5.2, the Company Stockholder shall not, and it shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its other Representatives not toto on Stockholder's behalf, in both cases in Stockholder's capacity as a Stockholder of Verilink, directly or indirectly:
, (iA) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly encourage or take any other action to knowingly facilitate any inquiries or knowingly encourage (including by way of furnishing information to any Person in connection with) the making, submission or announcement of any Company Alternative Proposal or any indication, proposal or inquiry offer that would constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, with respect to a Company Alternative Proposal;
Verilink, (iiB) enter into, continue or otherwise participate in any discussions or negotiations withregarding, furnish to any non-public Person any information relating to the Company with respect to, knowingly assist or participate in any of its Subsidiaries effort or attempt by any Person with respect to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way withwith any proposal or offer that constitutes, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would could reasonably be expected to seek lead to, any Acquisition Proposal with respect to makeVerilink, or has made, a Company Alternative Proposal (except to notify such Person discussions as to the existence of the provisions of this Section 5.2);
(iii) (A) fail to make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c)(iii), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statementthese provisions, (C) recommendapprove, adopt endorse or approve or publicly propose recommend any Acquisition Proposal with respect to recommend, adopt or approve any Company Alternative Proposal Verilink or (D) fail enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative any Acquisition Proposal or transaction contemplated thereby with respect to Verilink.
(ii) Stockholder shall immediately advise Larscom orally, with written confirmation to follow within 48 hours, of any Acquisition Proposal with respect to Verilink or any request for nonpublic information in connection with any such action by the close of business on the tenth (10th) Business Day after the commencement of such Company Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii)Acquisition Proposal, a “Company Board Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Company Alternative Proposal;
(v) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person inquiry with respect to the Company to, or any of its Subsidiaries; or
(vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to a Company Alternative Proposal or any indication, proposal or inquiry that would could reasonably be expected to lead to a Company Alternative Proposal (other than a Company Alternative Proposal NDA). Nothing contained herein shall prevent the Company Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to a Company Alternative Proposal, so long as any action taken or statement made to so comply is consistent with this Section 5.2(a) or (y) making any required disclosure to the Company Shareholders if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with applicable Law; provided, that any Company Board Change of Recommendation involving or relating to a Company Alternative Proposal may only be made in accordance with the provisions of Section 5.2(b), Section 5.2(c), Section 5.2(d) and Section 5.2(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Board Change of Recommendation. Additionally, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement Acquisition Proposal with respect to Verilink, the material terms and conditions of any Company Alternative such Acquisition Proposal or with respect to inquiry and the identity of the Person making any indication, proposal such Acquisition Proposal or inquiry that would reasonably be expected to lead to a Company Alternative Proposal. The Company will promptly (and in each case within twenty-four (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 Alternative 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 shall promptly (and in each case within twenty-four (24) hours from the date of this Agreement) terminate all physical and electronic data access previously granted to each such Personinquiry.
Appears in 1 contract
Sources: Voting Agreement (Larscom Inc)