No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.), Agreement and Plan of Merger (Carmike Cinemas Inc), Agreement and Plan of Merger (Amc Entertainment Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier7.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of and its and their respective officers or directors shalland directors, and the Company shall direct and use commercially reasonable best efforts to cause its Subsidiaries shall employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate initiate, or take any action to knowingly that it knows or reasonably should know would facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead tosubmission of, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to any Acquisition Proposal, other than a statement contemplated by Rule 14d-9(f) under the 1934 Act during the initial period of ten Business Days following the commencement of the Acquisition Proposal, shall be considered to be a modification of the Company Board Recommendation in a manner adverse to Parent), or take any action or make any statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), instrument constituting or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Third Party (or its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts actions to enforce make any confidentiality agreements entered into with state takeover statute (including any Person in connection with Delaware state takeover statute) or similar statute inapplicable to any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Hudson Holding Corp), Agreement and Plan of Merger (Hudson Holding Corp), Agreement and Plan of Merger (Rodman & Renshaw Capital Group, Inc.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier6.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company shall direct and use its Subsidiaries shall commercially reasonable efforts to cause its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation, or recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal, (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), instrument constituting or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided . Without limiting the foregoing, it is agreed that notwithstanding any violation of the foregoing and restrictions on the last Company set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 6.04(a) by the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 LawCompany. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable efforts to promptly inform cause any such Party (or its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts actions to enforce make any confidentiality agreements entered into with state takeover statute (including any Person in connection with Delaware state takeover statute) or similar statute inapplicable to any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Energizer Holdings Inc), Agreement and Plan of Merger (Playtex Products Inc), Agreement and Plan of Merger (Energizer Holdings Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from After the date hereof until and prior to the Effective Time or, if earlier, the Closing Date or earlier termination of this Agreement in accordance with Article 10its terms, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallSellers will not, and the Company Sellers will cause their Subsidiaries and its Affiliates and the officers, directors, employees, investment bankers, attorneys, consultants and other agents and advisors of the Sellers and their Subsidiaries shall and Affiliates not authorize any of its other Representatives to, directly or indirectly, (i) take any action to encourage, solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue encourage or otherwise participate engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Targeted Businesses or afford access to the business, properties, assets, books or records of the Company Targeted Businesses or any of its Subsidiaries the Sellers regarding the Target Assets to, any Third Party with respect Person (other than to any potential Acquisition ProposalPurchaser, (iiiits representatives and advisors) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided . The Sellers will notify Purchaser as soon as reasonably practicable, but in any event, within forty-eight hours of any Acquisition Proposal received by the Sellers or any of their Subsidiaries or any of their representatives, Affiliates, employees, advisors, agents, officers or directors, any indication that notwithstanding any Person is considering making an Acquisition Proposal or any request for nonpublic information relating to the foregoing Targeted Businesses or for access to the properties, books or records of the Sellers or any of their Subsidiaries by any Person who is considering making, or has made, an Acquisition Proposal. The Sellers shall provide such notice orally and in writing and shall identify the Person making, and the last sentence terms and conditions of, any such Acquisition Proposal, indication or request and shall also include, as and when received, copies of any written offer, proposal or materials received. The Sellers shall keep Purchaser fully informed, on a current basis, of the status and details of any such Acquisition Proposal, indication or request. Upon execution of this Section 6.04(a) Agreement, the Company Sellers shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its their Subsidiaries, and their respective Representatives toofficers, directors, Affiliates, representatives, consultants and advisors to immediately cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of negotiations with any Persons conducted prior to the date execution of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal and shall request (or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or if any of its Subsidiaries them has contractual rights to do so, demand) the return or destroy (as provided in the terms of such confidentiality agreement) all confidential documents, analyses, financial statements, projections and other data and information previously furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person others in connection with any potential Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Educate Inc), Asset Purchase Agreement (Sylvan Learning Systems Inc), Asset Purchase Agreement (Apollo Investment Fund Iv Lp)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with Article 1011, neither the Company nor any of its Subsidiaries nor any of their respective officers the officers, directors, employees, investment bankers, consultants or directors shall, and other agents of the Company and its Subsidiaries shall not authorize any of its other Representatives towill, directly or indirectly, (i) solicit, initiate initiate, encourage, induce or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes(including, or would reasonably be expected to lead to, any Acquisition Proposal, including without limitation by way of furnishing information) the submission of any non-public information or data concerning the Company or its Subsidiaries Acquisition Proposal or any assets owned inquiries with respect thereto, (ii) engage in whole discussions or part) by the Company or its Subsidiaries to negotiations with any Person in furtherance of concerning an Acquisition Proposal or if it would reasonably be expected knowingly facilitate any effort or attempt to lead to make an Acquisition Proposal or accept an Acquisition Proposal or (iiiii) enter into, continue or otherwise participate in disclose any discussions or negotiations with, or afford access nonpublic information relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition ProposalPerson who, (iii) enter into any agreement in principleto the knowledge of the Company, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement is making or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)considering making, or (iv) grant any waiverwho has made, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding . The Company will notify Parent as promptly as practicable (but in no event later than 24 hours) after receipt by the foregoing Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making or considering making or who has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Person making, and the last sentence of this Section 6.04(a) the terms and conditions of, any such Acquisition Proposal or request. The Company shall be permitted to waivekeep Parent informed of the status and details (including, amendwithout limitation, release amendments or fail to enforce any provision proposed amendments) of any confidentiality, “standstill” such Acquisition Proposal or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawrequest. The Company shall, and shall cause each of its Subsidiaries and the directors, employees and other agents of the Company and its and their respective Representatives Subsidiaries to, cease immediately and cause to be terminated any and all activities, discussions or and negotiations, if any, existing as of with any Persons conducted prior to the date of this Agreement with any Third Party and its Representatives hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior and, to the date hereof in connection with extent within its consideration of acquiring power, to recover or cause to be destroyed all information concerning the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries in the possession of such Persons and their Affiliates, representatives and advisors. Nothing contained in this Agreement shall use commercially reasonable efforts prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Pulliam Myrta J), Agreement and Plan of Merger (Central Newspapers Inc), Agreement and Plan of Merger (Gannett Co Inc /De/)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors Each Shareholder shall, and the Company shall cause its trustees, representatives, consultants, investment bankers, attorneys, accountants and other agents acting in its capacity as such (collectively, a person’s or entity’s “Representatives”) to, immediately cease any discussions, activities or negotiations with any other Person or Persons (other than Parent and Parent’s representatives) that may be ongoing with respect to any Acquisition Proposal. Each Shareholder further agrees that it and its Subsidiaries Representatives (to the extent they are serving as a Representative of a Shareholder) shall not authorize any of its other Representatives to, directly or indirectly, (i) directly or indirectly solicit, initiate initiate, knowingly encourage or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue directly or otherwise indirectly participate in 2 any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assetsbooks, books records, data or records confidential information of the Company or any of its Subsidiaries to, to any Third Party with respect that is seeking to make, or has made an Acquisition Proposal, or take any potential other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (iii) enter into any agreement in principlerecommend, memorandum of understandingadopt or approve, letter of intentor propose publicly to recommend, merger agreementadopt or approve, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)Proposal, or (iv) grant agree or publicly propose to do any waiver, amendment of the foregoing. Each Shareholder further agrees that it shall promptly notify Parent (but in no event later than forty-eight hours) after receipt by such Shareholder (or release under any standstill or confidentiality agreement concerning an of its Representatives) of any Acquisition Proposal; provided , any inquiry that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall could be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal or of any request for information relating to the Company or its Subsidiaries by any Third Party that to the knowledge of the Shareholder may be considering making, or has made an Acquisition Proposal, which notice shall be provided in writing and shall identify the person making, and the terms and conditions of, any such Acquisition Proposal, inquiry or request (including any material changes thereto and copies of any written materials received from such Third Party or its Representatives in connection therewith). The Shareholders shall keep Parent fully informed of any material change to any Acquisition Proposal, inquiry or request for information. The Shareholders shall enforce, to the fullest extent permitted under Applicable Law, the provisions of any standstill, confidentiality or similar agreement entered into by the Shareholders or their respective Representatives, including where necessary, seeking to obtain injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. Notwithstanding anything to the contrary contained herein, if the Company shall use its commercially reasonable efforts or the Company Board is, subject to promptly inform its Representatives all the procedures, obligations, conditions and limitations otherwise applicable to the Company, engaging in an action permitted to be taken with respect to an Acquisition Proposal by the Company or the Company Board pursuant to Section 5.02 of the Merger Agreement, then a Shareholder may also engage in such action with respect to the subject Acquisition Proposal provided that the Shareholder has complied with all of the procedures, obligations, conditions and limitations otherwise applicable to the Company, including but not limited to the entry by such Shareholder into a Confidentiality Agreement and the compliance by the Shareholder with various notification obligations. Parent agrees that each Shareholder’s notification obligations hereunder may be satisfied by communications from the Company to Parent and any such notifications need not be provided by the Shareholder individually. Without limiting the foregoing, Parent and each of the Shareholders agree that any violation of the restrictions set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed 4 by any Representative of a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of Shareholder shall constitute a breach by such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions Shareholder of this Section 6.044.
Appears in 2 contracts
Samples: Voting Agreement (Continucare Corp), Voting Agreement (Metropolitan Health Networks Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with Article 10Section 7, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallNGH will not, and NGH will use its reasonable best efforts to cause the Company and its Subsidiaries shall officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "Agents") of NGH not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to NGH or any of its Subsidiaries to any Person who, to the knowledge of NGH, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would that could reasonably be expected to lead to, any an Acquisition Proposal, including . NGH will notify Parent promptly (but in no event later than 24 hours) after receipt by way NGH of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected any request for nonpublic information relating to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company NGH or any of its Subsidiaries toby any Person who, to the knowledge of NGH, is making, or has made, an Acquisition Proposal. NGH shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any Third Party with respect to such Acquisition Proposal or request. NGH shall keep Parent promptly informed of the status and details of any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an such Acquisition Proposal (an “Alternative Acquisition Agreement”), including any amendments or (ivproposed amendments) grant or request and any waiver, amendment discussions or release under negotiations pursuant to Section 6(b) and NGH shall provide to Parent copies of any standstill or confidentiality agreement concerning an written communications between NGH and the Person making the Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company NGH shall, and NGH shall use reasonable best efforts to cause each the Agents of its Subsidiaries and its and their respective Representatives NGH to, cease immediately and cause to be terminated any and all activities, discussions or and negotiations, if any, existing as of with any Persons conducted prior to the date of this Agreement with any Third Party and its Representatives hereof with respect to any Acquisition Proposal Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of NGH from complying with Rule 14d-9 or that would reasonably be expected Rule 14e-2 under the 1934 Act with respect to lead to an any Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 2 contracts
Samples: Voting and Indemnity Agreement (Nabisco Inc), Voting and Indemnity Agreement (Philip Morris Companies Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier6.02(b), the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallshall not, and shall cause the Company Company’s Subsidiaries not to, and its Subsidiaries shall not knowingly permit or authorize any of its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other Representatives authorized agents, advisors or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) withdraw or modify in a manner adverse to Parent or the Merger, or publicly propose to withdraw or modify in a manner adverse to Parent or the Merger, the Company Board Recommendation, or recommend, endorse, adopt or approve or publicly propose to recommend, endorse, adopt or approve an Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any voting securities of the Company or any of its Subsidiaries, or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument constituting or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), ) or (ivvi) grant resolve or agree to do any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawforegoing. The Company shall, and shall cause each of its Subsidiaries to, and its and shall instruct their respective Representatives to, (A) cease immediately and cause to be terminated terminate any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal, (B) instruct any such Third Party (or its agents or advisors) in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information and (C) subject to Section 6.02(b), not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its Affiliates or Representatives is a party with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of , and enforce the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04any such agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Labarge Inc), Agreement and Plan of Merger (Ducommun Inc /De/)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the Effective Time or, if earlierTime, the termination of this Agreement in accordance with Article 10, neither the Company nor any of shall not and shall cause its Subsidiaries nor any of and its and their respective directors and officers or directors shallnot to, and the Company shall use reasonable best efforts to cause its and its Subsidiaries shall their Representatives not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission by a Third Party of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue engage in or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of books, records, work papers and other documents related to the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way with, or knowingly assist, facilitate or encourage any effort by any Third Party Party, in each case, in connection with respect or in response to any potential an Acquisition Proposal, or any inquiry that would reasonably be expected to lead an Acquisition Proposal, or (iii) enter into any oral or written or binding or non-binding agreement in principle, memorandum of understanding, letter of intent, indication of interest, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning instrument contemplating an Acquisition Proposal; provided that notwithstanding anything to the foregoing contrary in this Agreement, the Company or any of its Representatives may, (A) in response to an unsolicited inquiry or proposal, seek to clarify the terms and conditions of such inquiry or proposal and (B) in response to an inquiry or proposal from a Third Party, inform a Third Party or its Representative of the last sentence restrictions imposed by the provisions of this Section 6.04(a) 6.03. The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of, any standstill or similar agreement with respect to any class of equity securities of the Company shall or any of its Subsidiaries, and will enforce or cause to be permitted to waiveenforced each such agreement in accordance with its terms at the request of Parent; provided, amendhowever, release that the Company may waive or fail to enforce any provision of any confidentiality, “standstill” such standstill or similar obligation agreement of any Person if the Company Board of Directors of the Company determines 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 to the Company’s stockholders under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated It is agreed that any and all activities, discussions or negotiations, if any, existing as violation of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The restrictions on the Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations set forth in this Section 6.04. The by any Subsidiary of the Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration or by any non-employee Representative of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in acting at the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by direction of, or on behalf of, a director or senior executive officer of it or any of its Subsidiaries. The the Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.046.03(a) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pioneer Natural Resources Co), Agreement and Plan of Merger (Pioneer Natural Resources Co)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with Article 10pursuant to its terms, subject to Section 6.03(b), neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and nor shall the Company and its Subsidiaries shall not authorize or any of its other Subsidiaries authorize or knowingly permit any of its Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate encourage, directly or knowingly encourage any inquiries or indirectly, the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or afford access furnish to any Third Party any nonpublic information or data with respect to, or take any other action to knowingly facilitate the businessmaking of, propertiesany Acquisition Proposal, assets(iii) fail to make, books or records withdraw or modify in a manner adverse to Parent, the Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”) (it being understood, however, that for all purposes of this Agreement, the fact that the Company or any of its Subsidiaries to, or Representatives has taken any Third Party with respect to of the actions described in clause (ii) above as permitted by this Agreement shall not be deemed in and of itself a withdrawal or modification of the Board Recommendation or a recommendation of any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant enter into any waiveragreement with respect to any Acquisition Transaction, amendment or release under any standstill or except for a confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this as contemplated by Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Law6.03(b)(ii). The Company shall, and shall cause each its Subsidiaries and the Representatives of the Company and any of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Microsemi Corp), Agreement and Plan of Merger (Powerdsine LTD)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their respective officers or directors shallRepresentatives to, and the Company shall instruct, and its Subsidiaries shall cause each applicable Subsidiary and Affiliate, if any, to instruct, each such Representative not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an any Acquisition Proposal Proposal, or, subject to Section 7.03(b), (i) conduct or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any potential Acquisition Proposalclass of equity securities of the Company or any of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (C) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, except in connection with the transactions contemplated by this Agreement, or (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, acquisition option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Contract relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall fail to make, withdraw or (iv) grant any waivermodify in a manner adverse to Parent or Merger Subsidiary the Board Recommendation, amendment or release under any standstill or confidentiality agreement concerning recommend an Acquisition Proposal; provided that notwithstanding , fail to recommend against acceptance of any tender offer or exchange offer for the Company Shares within 10 Business Days after the commencement of such offer, or take any action or make any public statement inconsistent with the Board Recommendation, or resolve or agree to take any of the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce actions (any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faithforegoing, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Lawan “Adverse Recommendation Change”). The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Third Party (or its Representatives agents or advisors) in possession of the obligations non-public information in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration respect of acquiring the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries at any time after September 30, 2006, to return or destroy (as provided in the terms of such confidentiality agreementand confirm destruction of) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04information.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Oracle Corp), Agreement and Plan of Merger (Hyperion Solutions Corp)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier7.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of and its and their respective officers or directors shalland directors, and the Company shall direct and use reasonable best efforts to cause its Subsidiaries shall employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate initiate, or take any action to knowingly that it knows or reasonably should know would facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead tosubmission of, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to any Acquisition Proposal, other than a statement contemplated by Rule 14d-9(f) under the 1934 Act during the initial period of ten Business Days following the commencement of the Acquisition Proposal, shall be considered an adverse modification, recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal), or take any action or make any statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), instrument constituting or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Party (or its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts actions to enforce make any confidentiality agreements entered into with state takeover statute (including any Person in connection with Delaware state takeover statute) or similar statute inapplicable to any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stifel Financial Corp), Agreement and Plan of Merger (Thomas Weisel Partners Group, Inc.)
No Solicitation; Other Offers. (a) Except as provided by From the remainder date of this Section 6.04, from Agreement until the date hereof until earlier of the Effective Time or, if earlier, or the termination of this Agreement in accordance with Article 10its terms, neither subject to Section 6.03(b), Section 6.03(c) and Section 6.03(e), the Company nor any of shall not, and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company shall use its reasonable best efforts to cause its and its Subsidiaries shall Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, intermediaries and representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 6.03 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes of this Section 6.03(a)) or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, Proposal or (iii) enter into (A) withdraw (or modify in a manner adverse to Parent) the Company Board Recommendation (it being understood that failure to issue a press release that reaffirms the Company Board Recommendation within five Business Days of the date any agreement Acquisition Proposal or any material modification thereto is publicly disclosed shall be considered an adverse modification), (B) fail to include the Company Board Recommendation in principlethe Company Proxy Statement or (C) recommend, memorandum of understandingadopt or approve or publicly propose to recommend, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement adopt or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of approve an Acquisition Proposal (any of the foregoing in this clause (iii), an “Alternative Acquisition AgreementAdverse Recommendation Change”), ) or (iv) grant approve any waivertransaction under, amendment or release under any standstill or confidentiality agreement concerning Person becoming an Acquisition Proposal; provided “interested stockholder” under, Section 203 of the Delaware Law. Without limiting the generality of the foregoing, it is agreed that notwithstanding any violation of the foregoing and the last sentence of this Section 6.04(a) restrictions on the Company shall be permitted to waive, amend, release or fail to enforce set forth in the preceding sentence by any provision Representative of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy shall be a breach of this Section by the Company (it being understood and agreed that any such violation shall be determined as provided in if such Representative is bound by the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.046.03(a)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aetna Inc /Pa/), Agreement and Plan of Merger (Coventry Health Care Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, The Company agrees that neither the Company it nor any of its Subsidiaries nor any of their respective the officers and directors of it or directors its Subsidiaries shall, and the Company that it shall cause its and its Subsidiaries shall not authorize Subsidiaries’ employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its other Subsidiaries for services provided in connection with the transactions contemplated by this Agreement whether as of the date hereof or any time hereafter) (collectively, “Representatives”) not to, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (i) solicit, initiate or take engage in any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutesnegotiations concerning, or would reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, including by way of furnishing or otherwise knowingly encourage or facilitate any non-public information effort or data concerning the Company attempt to make or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of implement an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or Proposal, (ii) enter into, continue amend or otherwise participate in grant any discussions waiver or negotiations with, release under any standstill or afford access similar agreement with respect to the business, properties, assets, books or records any class of equity securities of the Company or any of its Subsidiaries to(unless Parent’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, any Third Party with respect to any potential Acquisition Proposal2005 between the Company and Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of the Delaware Law, (iv) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, (v) make any Adverse Company Recommendation Change in connection with an Acquisition Proposal or (vi) enter into any definitive agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning with respect to an Acquisition Proposal; provided provided, however, that notwithstanding nothing contained in this Agreement shall prevent the foregoing Company or its Board of Directors from (1) complying with its disclosure obligations under Sections 14d-9 and 14e-2(a) of the last sentence Exchange Act with regard to an Acquisition Proposal; provided, however, that if such disclosure constitutes an Adverse Company Recommendation Change, Parent shall have the right to terminate this Agreement as set forth in Section 10.01(c)(i) of this Section 6.04(aAgreement; and (2) at any time prior to, but not after, the time this Agreement is adopted by the Company shall be permitted Stockholder Approval, (A) providing information in response to waivea request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of the Company receives from the Person so requesting such information, amend, release or fail prior to enforce any the provision of any confidentialitysuch information, “standstill” an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (provided that, such executed confidentiality agreement may contain less favorable standstill provisions as long as Parent’s obligations under the standstill provisions contained in the Confidentiality Agreement are simultaneously waived); (B) engaging in any negotiations or similar obligation of discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of the Company receives from such Person, prior thereto, an executed confidentiality agreement as described in the immediately preceding clause (A); or (C) recommending or making any Adverse Company Recommendation Change in connection with such an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of the Company determines in good faithfaith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties, (y) in each case referred to in clause (B) or (C) above, the Board of Directors of the Company determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal, that if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the failure proposal, the likelihood of obtaining financing, and the Person making the proposal, and if consummated, would result in a transaction more favorable to the Company’s stockholders from a financial point of view than the transaction contemplated by this Agreement taking into account any change proposed by Parent; and (z) in the case of clause (C), Parent shall have had written notice of the Company’s intention to take the action referred to in clause (C) at least 20 Business Days prior to the taking of such action would be inconsistent with its fiduciary duties under Applicable Law. The by the Company (which notice shall have attached the most current version of the agreement relating to the Acquisition Proposal in question and a summary of any other material terms relating thereto) and Parent shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, during such 20 Business Day period, negotiate in good faith with Parent with respect to any changes Parent may wish to make with respect to its proposal; provided, that any more favorable Acquisition Proposal referred to in clause (B) or (C) above must constitute an Acquisition Proposal that involves the acquisition, directly or indirectly, of 50% or more of the voting power of the Company Stock or the assets of the Company and its Subsidiaries taken as a whole (any such more favorable Acquisition Proposal is referred to in this Agreement as a “Superior Proposal”). The Company agrees that it will immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiationsnegotiations with any Person conducted heretofore with respect to any Acquisition Proposal, including any discussions or negotiations with respect to the possible sale of the Flextech Group. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of this Section 6.03 of the obligations undertaken in this Section 6.03. The Company agrees that it will notify Parent promptly, but in any event within 48 hours if anyany proposals or offers referred to in this Section 6.03 are received by, existing as any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, it or any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed on a current basis, and, in any event, within 24 hours of any changes in the status, the terms and any other material details of any such proposals or offers, including whether any such proposal has been withdrawn or rejected. The Company also agrees to provide any information to Parent that it is providing to another Person pursuant to this Section 6.03 at substantially the same time it provides it to such other Person. The Company agrees promptly, but in any event, within five days after the date of this Agreement, to request the return or destruction of all information and materials provided prior to the date of this Agreement with by it, its Affiliates or their respective Representatives (and any Third Party and its Representatives information derived therefrom) with respect to the consideration or making of any Acquisition Proposal or that would reasonably be expected (including with respect to lead to an Acquisition Proposal. The the possible sale of the Flextech Group) and the Company shall otherwise use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable best efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04agreement relating thereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NTL Inc), Agreement and Plan of Merger (Telewest Global Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier6.04(b), the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallshall not, and the Company shall cause its Subsidiaries and its Subsidiaries shall and their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents and advisors (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage any inquiries regarding, or the making or submission of any proposal or offer that constitutes, or would could reasonably be expected to lead toresult in, any an Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations withregarding any Acquisition Proposal, or afford access furnish or disclose any information relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries toor knowingly cooperate in any way with, or knowingly take any action to facilitate or encourage any effort by, any Third Party with respect that is seeking to make, or has made, any potential Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent, the Company Board Recommendation (or publicly recommend any Acquisition Proposal or take any public action or make any public statement inconsistent with the Company Board Recommendation, including any failure to include the Company Board Recommendation in the 50 Company Proxy Statement) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”) or (iv) enter into any agreement, agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant instrument relating to any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing negotiations with any Third Party (other than Parent and its Representatives) that may be ongoing as of the date of this Agreement with any Third Party and its Representatives hereof with respect to any Acquisition Proposal actual or that would reasonably be expected to lead to an potential Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform obtain, in accordance with the terms of any applicable confidentiality agreement, the return or destruction of any confidential information previously furnished to any such Person by the Company, any of its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company Subsidiaries or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04their Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (HeartWare International, Inc.), Agreement and Plan of Merger (Thoratec Corp)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier6.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company shall direct and use its Subsidiaries shall commercially reasonable efforts to cause its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation, or recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument constituting or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”except for confidentiality agreements permitted under Section 6.03(b), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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). The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable efforts to promptly inform cause any such Party (or its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts actions to enforce make any confidentiality agreements entered into with state takeover statute (including any Person in connection with Kentucky state takeover statute) or similar statute inapplicable to any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ipsco Inc), Agreement and Plan of Merger (Ns Group Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier6.5(b), the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallshall not, and the Company shall cause its Subsidiaries and its Subsidiaries shall and their Representatives not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or indication of interests regarding, or the making or submission of any proposal or offer that constitutes, or would could reasonably be expected to lead toresult in, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with(oral or written) regarding any Acquisition Proposal or any inquiry or indication of interest with respect thereto, or furnish or disclose any non-public information relating to the Company or any of its Subsidiaries or, except as required by Applicable Law, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise assist, cooperate in any way with, or take any action to knowingly facilitate or knowingly encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal or any inquiry or indication of interest with respect to any potential Acquisition Proposalthereto, (iii) fail to make, withdraw or modify in a manner adverse to Parent, the Company Board Recommendation (or publicly recommend any Acquisition Proposal, or any inquiry or indication of interest with respect thereto, or take any public action or make any public statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”) or (iv) enter into any agreement, agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement term sheet or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant instrument relating to any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing negotiations with any Third Party (other than Parent and its Representatives) that may be ongoing as of the date of this Agreement with any Third Party and its Representatives hereof with respect to any actual or potential Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives any inquiry or indication of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection interest with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04respect thereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Intellon Corp), Agreement and Plan of Merger (Atheros Communications Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither Neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and nor shall the Company and its Subsidiaries shall not authorize or any of its other Subsidiaries authorize or permit any of its or their Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage the submission of any inquiries Acquisition Proposal or any inquiries, indication of interest or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an any Acquisition Proposal Proposal, or, subject to Section 7.03(b), (i) conduct or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal, (ii) (x) amend or grant any waiver or release under any standstill or similar agreement with respect to any potential Acquisition Proposalclass of equity securities of the Company or any of its Subsidiaries, (y) approve any transaction under, or any Third Party becoming an “interested stockholder” under Section 203 of Delaware Law, or (z) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, except in connection with the transactions contemplated by this Agreement, or (iii) enter into any agreement Contract relating to any Acquisition Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall (A) fail to make, withdraw or modify in principlea manner adverse to Parent or Merger Subsidiary the Board Recommendation or the Company Compensation Approvals, memorandum (B) recommend an Acquisition Proposal, (C) fail to recommend against acceptance of understandingany Third Party tender offer or exchange offer for the Company Shares within ten Business Days after the commencement of such offer, letter (D) fail to confirm the Board Recommendation within ten Business Days of intenta request from Parent to do so, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for provided that Parent shall only be entitled to make such a transaction that is request if and to the subject of extent an Acquisition Proposal (an “Alternative Acquisition Agreement”)shall be pending and not publicly withdrawn at the time of such request, or (ivE) grant resolve or agree to take any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding of the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce actions (any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faithforegoing, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Lawan “Adverse Recommendation Change”). The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The At the request of Parent, the Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request that each Person Third Party, if any, that has executed a confidentiality agreement within the 12-month period prior to the date hereof in connection with its consideration of acquiring any Acquisition Proposal return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) and all confidential information furnished to such Person prior to the date hereof analyses and other materials prepared by or on behalf of it such Person that contains, reflects or any analyzes that information), and the Company shall provide to Parent all certifications of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04such return or destruction from such other Persons as promptly as practicable after receipt thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Blue Coat Systems Inc), Agreement and Plan of Merger (Packeteer Inc)
No Solicitation; Other Offers. (a) Except as provided by Subject to the remainder of this Section 6.04, upon execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) to, immediately cease or cause to be terminated any and all activities, discussions or negotiations with any Person with respect to any Acquisition Proposal. The Company shall promptly after the date of this Agreement instruct each Third Party which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all information, documents, and materials relating to the Acquisition Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person. Subject to Section 6.04(b) and Section 6.04(c), from the date hereof execution of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other or their Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate facilitate, encourage or assist, or knowingly encourage any inquiries induce the making, submission or the making of any proposal or offer that constitutesannouncement of, or would reasonably be expected to lead to, any an Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books books, records or records other information of the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way with any Third Party with respect that is seeking to any potential make, or has made, or could reasonably be expected to make, an Acquisition Proposal, (iii) approve, adopt, endorse, or recommend an Acquisition Proposal, (iv) fail to make, withhold, withdraw or amend, qualify or modify, in each case in a manner adverse to Parent, or publicly propose to withhold, withdraw or amend, modify or qualify, in each case in a manner adverse to Parent, the Company Board Recommendation, (v) propose publicly to approve, adopt, endorse or recommend any Acquisition Proposal (any of the foregoing in clause (iii), (iv) or (v), whether taken by the Board of Directors of the Company or any committee thereof being referred to as an “Adverse Recommendation Change”), (vi) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument contemplating or otherwise relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”)Proposal, or (ivvii) grant take any waiver, amendment action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or release under other similar anti-takeover statute or regulation inapplicable to any standstill or confidentiality agreement concerning transactions contemplated by an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this no action expressly permitted by Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives 8.08 with respect to any Acquisition Proposal or that would reasonably be expected standstill provision in any agreement to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring which the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries is a party shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions constitute a breach of this Section 6.04.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hanesbrands Inc.), Agreement and Plan of Merger (Maidenform Brands, Inc.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier6.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company and its Subsidiaries shall not authorize any of knowingly permit its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other Representatives authorized agents, advisors or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, (including by way of furnishing to any Third Party any non-public information information) the submission or data concerning the Company or its Subsidiaries or making of any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would any proposal that is reasonably be expected likely to lead to an any Acquisition Proposal or Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect that to the knowledge or the Company is seeking to make, or has made, an Acquisition Proposal or any potential proposal that is reasonably likely to lead to an Acquisition Proposal, (iii) withdraw, qualify or modify, in each case, in a manner adverse to Parent or publicly propose to withdraw, qualify or modify, in each case, in a manner adverse to Parent the Company Board Recommendation, recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal, (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), or (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument constituting or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant enter into any waiver, amendment agreement or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) in principle requiring the Company shall be permitted to waiveabandon, amend, release terminate or fail to enforce any provision of any confidentiality, “standstill” consummate the transactions contemplated by this Agreement or similar obligation of any Person if the Board of Directors of the Company determines in good faith, after consultation with breach its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Lawobligations hereunder. The Company shall, and shall cause each of its Subsidiaries to, and its and shall instruct their respective Representatives to, cease immediately and cause to be terminated terminate any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about the Company that would reasonably be expected was furnished by or on behalf of the Company to lead to an Acquisition Proposalreturn or destroy all such information. The Company shall use its commercially reasonable efforts to promptly inform make its Representatives aware of the obligations in provisions of this Section 6.046.03. The Company also agrees Without limiting the foregoing, it is agreed that it will promptly request each Person that has executed a confidentiality agreement prior to any violation of the date hereof in connection with its consideration foregoing restrictions by any of acquiring the Company’s Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.046.03 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Razor Holdco Inc.), Agreement and Plan of Merger (Thermadyne Holdings Corp /De)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their respective officers or directors shallRepresentatives to, and the Company shall instruct, and its Subsidiaries shall cause each applicable Subsidiary, if any, to instruct, each such Representative not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would could reasonably be expected to lead to an any Acquisition Proposal Proposal, or, subject to Section 7.03(b), (i) conduct or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any potential Acquisition Proposalclass of equity securities of the Company or any of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested shareholder” under, Section 302A.011 of the MBCA, or (C) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, except in connection with the transactions contemplated by this Agreement, or (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, acquisition option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Contract relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall fail to make, withdraw or (iv) grant any waivermodify in a manner adverse to Parent or Merger Subsidiary the Board Recommendation, amendment or release under any standstill or confidentiality agreement concerning recommend an Acquisition Proposal; provided that notwithstanding , fail to recommend against acceptance of any tender offer or exchange offer for the Company Shares within 10 Business Days after the commencement of such offer, or take any action or make any public statement inconsistent with the Board Recommendation, or resolve or agree to take any of the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce actions (any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faithforegoing, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Lawan “Adverse Recommendation Change”). The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Third Party (or its Representatives agents or advisors) in possession of the obligations non-public information in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration respect of acquiring the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries at any time after April 1, 2006 to return or destroy (as provided in the terms of such confidentiality agreementand confirm destruction of) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04information.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stellent Inc), Agreement and Plan of Merger (Oracle Corp)
No Solicitation; Other Offers. (a) Except as provided by During the remainder of this Section 6.04, from period beginning on the date hereof until the Effective Time or, if earlier, the termination of this Agreement and ending on the earlier to occur of (x) the Acceptance Time or (y) the date on which this Agreement is terminated in accordance with Article 10Section 11.1, neither subject to Section 7.3(b), the Company nor any of shall not, and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company shall direct and use all commercially reasonable efforts to cause its Subsidiaries shall and their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in or continue any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate with, or assist any Third Party with respect to an Acquisition Proposal or in a manner which would or would reasonably be expected to or facilitate the making of any potential Acquisition ProposalProposal by any Third Party, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation, recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), constituting or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided . Without limiting the foregoing, it is agreed that notwithstanding any violation of the foregoing and restrictions on the last sentence Company set forth in this Section by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 6.04(a) by the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 LawCompany. The Company shall, and shall cause each of its Subsidiaries to, and its and shall instruct their respective Representatives to, cease immediately and cause to be terminated terminate any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal and shall instruct any such Third Party (or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or any of its Subsidiariesdestroy all such information. The Company and its Subsidiaries shall use commercially reasonable efforts advise Parent of any Third Party who does not comply with such instructions. During the term of this Agreement, the Company shall not take any actions to enforce make any confidentiality agreements entered into with Takeover Statute (including any Person in connection with Nevada state takeover statute) or similar statute inapplicable to any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Catapult Communications Corp), Agreement and Plan of Merger (Ixia)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From and after the date hereof until the earlier of the Effective Time or, if earlier, or the termination of this Agreement in accordance with Article 10its terms, neither the Company nor any shall not, and shall cause each of its Subsidiaries nor any Representatives and each of the Acquired Companies (and each of their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives) not authorize any of its other Representatives to, directly or indirectly, except as set forth on Section 5.01(i) of the Company Disclosure Schedule, (i) solicit, initiate initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to knowingly facilitate solicit, initiate, facilitate, support, seek, induce, entertain or knowingly encourage any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent, (iii) furnish to any Person other than Parent any information that the Company believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, any an Acquisition Proposal, including by way of furnishing (iv) accept any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to lead to an any Acquisition Proposal or (iiv) enter into, continue submit any Acquisition Proposal or otherwise participate in any discussions or negotiations with, or afford access matter related thereto to the business, properties, assets, books or records vote of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors Shareholders of the Company determines 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 LawCompany. The Company shall, and shall cause each of its Subsidiaries Representatives and its each of the other Acquired Companies (and each of their respective Representatives Representatives) to, immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of negotiations with any Persons conducted prior to or on the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal Proposal, and shall promptly (and in any event within twenty-four (24) hours) provide Parent with: (x) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Proposal, or any request for information that would could reasonably be expected to lead to an be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees , that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the is received by any Acquired Company or any Representatives of its Subsidiaries to return any Acquired Company from any Person (other than Parent), including in such description the identity of the Person from which such expression of interest, inquiry, proposal, offer or destroy request for information was received (as provided in the terms “Other Interested Party”); and (y) a copy of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or each written communication and a complete summary of each other communication transmitted on behalf of it the Other Interested Party or any of its Subsidiaries. The the Other Interested Party’s Representatives to any Acquired Company and its Subsidiaries shall use commercially reasonable efforts to enforce or any confidentiality agreements entered into with Representatives of any Person in connection with Acquired Company or transmitted on behalf of any Acquisition Proposal if requested to do so by Parent, subject Acquired Company or any Representatives of any Acquired Company to the remaining provisions Other Interested Party or any of this Section 6.04the Other Interested Party’s Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mellanox Technologies, Ltd.), Agreement and Plan of Merger
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the The Company nor any of its Subsidiaries nor any of their respective officers or directors shallshall not, and the Company and its Subsidiaries shall not authorize permit any of its other Representatives Subsidiary to, directly and shall use its best efforts to ensure that its officers, directors or indirectlyemployees, (i) or any investment bankers, consultants or other agents retained by it or any Subsidiary to not, solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal Acquisition Proposal (as defined below) or offer that constitutes, engage in discussions or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information negotiations or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries furnish to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead any information with respect to an Acquisition Proposal or (ii) enter into, continue knowingly facilitate any effort or otherwise participate in any discussions or negotiations with, or afford access attempt to the business, properties, assets, books or records make an Acquisition Proposal. The Company will notify Buyer within 48 hours of receipt by the Company or any Subsidiary of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)or any request for nonpublic information relating to the Company or any Subsidiary by any Person who, to the knowledge of the Company, is making or (iv) grant any waiverconsidering making or who has made, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the . The Company shall be permitted to waive, amend, release or fail to enforce any provision provide such notice orally and in writing including the terms and conditions of any confidentiality, “standstill” such Acquisition Proposal or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawrequest. The Company shall, and shall cause each of its the Subsidiaries and its directors, employees and their respective Representatives other agents of the Company and the Subsidiaries to, cease immediately and cause to be terminated any and all activities, discussions or and negotiations, if any, existing as with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the date of this Agreement Company from complying with any Third Party applicable rules and its Representatives regulations under the Exchange Act with respect to any Acquisition Proposal or that would making any disclosure to the Company's stockholders if, in the good faith judgment of a majority of the disinterested members of the Board of Directors of the Company after receipt of a written opinion from its outside legal counsel, failure to so disclose could reasonably be expected deemed to lead to an Acquisition Proposalbe inconsistent with its fiduciary duties under applicable law. The Company shall use its commercially reasonable efforts to promptly inform its Representatives For purposes of this Section, a "disinterested member of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed Board of Directors" is a confidentiality agreement prior to member of the date hereof in connection with its consideration Board of acquiring the Company or any of its Subsidiaries to return or destroy (Directors who is not an "interested director" as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04defined under DGCL.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Universal Access Global Holdings Inc), Stock Purchase Agreement (Universal Access Global Holdings Inc)
No Solicitation; Other Offers. (a) Except as provided by From the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, earlier of the respective Closing Date or the termination of this Agreement in accordance with Article 10its terms, neither each Selling Shareholder, each Company, the Company nor any Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall cause each of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives not authorize any of its other Representatives to, directly or indirectly, : (i) solicit, initiate initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to knowingly facilitate solicit, initiate, facilitate, support, seek, induce, or knowingly encourage any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that notwithstanding such limitation will not apply with respect to the foregoing and Parent or Purchaser other than where the last sentence of this Section 6.04(a) underlying transaction is reasonably expected to be an alternative transaction to the Company shall be permitted to waiveTransactions), amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of negotiations with any Persons conducted prior to or on the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives is received by them from any Person, including in such description the identity of the obligations in this Section 6.04. The Company also agrees that it will promptly request Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each Person that has executed written communication and a confidentiality agreement prior to complete summary of each other communication transmitted on behalf of the date hereof in connection with its consideration of acquiring the Company Other Interested Party or any of its Subsidiaries the Other Interested Party’s Representatives to return any of them or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or transmitted on behalf of it any of them to the Other Interested Party or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Other Interested Party’s Representatives.
Appears in 2 contracts
Samples: Share Purchase Agreement (Sapiens International Corp N V), Share Purchase Agreement (Kardan Technologies Ltd.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 106.03(c) through Section 6.03(g), neither the Company IMOS shall, nor shall IMOS authorize or permit any of its Subsidiaries nor any of or their respective officers officers, directors, employees, investment bankers, attorneys, accountants, consultants or directors shall, and the Company and its Subsidiaries shall not authorize any of its other Representatives agents or advisors (“Representatives”) to, directly or indirectly, : (i) solicitinitiate, initiate solicit or take any action to knowingly facilitate or knowingly encourage any inquiries or requests for information with respect to, the making of any proposal or offer that constitutesof, or would that could reasonably be expected to lead toresult in, any an Acquisition Proposal; (ii) enter into, including by way of furnishing participate or engage in any negotiations concerning, or provide any non-public information or data concerning the Company or its Subsidiaries relating to it or any assets owned (in whole or part) by the Company or of its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the businessresources, properties, assets, books or records of the Company it or any of its Subsidiaries to any Person relating to, any Third Party with respect in connection with, or in response to any potential an Acquisition Proposal, or any inquiry or indication of interest that could reasonably expected to result in an Acquisition Proposal; (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal; (iv) approve or recommend, or propose publicly to approve or recommend, or execute or enter into into, any letter of intent, agreement in principle, memorandum of understanding, letter of intent, merger or amalgamation agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an relating to any Acquisition Proposal (each an “Alternative Acquisition Agreement”), or ; (ivv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waiveterminate, amend, release release, modify or fail to enforce any provision of (including any standstill or other provision) of, or grant any permission, waiver or request under, any confidentiality, “standstill” standstill or similar obligation agreement (including an Acceptable Confidentiality Agreement) or obligations of any Person if the Board (other than in respect of Directors ChipMOS Taiwan); or (vi) propose publicly or commit, authorize or agree to do any of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect foregoing relating to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives It is agreed that any violation of the obligations restrictions on IMOS set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration by any Representative of acquiring the Company IMOS or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.04by IMOS.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chipmos Technologies Bermuda LTD)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.046.04(b) and Section 6.04(c), from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of shall not, shall cause its Subsidiaries nor any of not to, shall use its reasonable best efforts to cause, and shall instruct, its and their respective officers directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or directors shallrepresentatives (collectively, “Representatives”) not to, and the Company and its Subsidiaries shall not authorize any of its other or their Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 with any Third Party with respect that may reasonably be expected to any potential make, or has made, an Acquisition Proposal, (iii) withhold, qualify, change, fail to make (including any failure to reaffirm within five Business Days of a request from Parent following the making of a public acquisition proposal or any publicly disclosed change to the material terms thereof), withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement instrument relating to an Acquisition Proposal (but excluding other than, to facilitate the sharing of information permitted by Section 6.04(b), an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (ivv) grant publicly propose to do any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding of the foregoing and the last sentence of this Section 6.04(a) the foregoing. The Company shall be permitted to waive, amend, not release or fail to enforce waive any provision of any confidentiality, “standstill” provision or similar obligation of agreement to which it is a party; provided, that, if the Company is in compliance with this Section 6.04, the Company may release or waive any Person if “standstill” provision or agreement to which it is a party for a Third Party who has indicated to the Company its desire to make an unsolicited non-public bona fide Acquisition Proposal to the Company that the Board of Directors of the Company reasonably believes may lead to a Superior Proposal but which Third Party is unable to do so because of such “standstill” provision or agreement, solely to the extent necessary to permit the counterparty to such “standstill” provision or agreement to make an unsolicited non-public Acquisition Proposal to the Company, if, prior to such release or waiver, the Company’s Board of Directors determines in good faith, faith after consultation with its outside legal counsel, counsel that the failure to take such action would reasonably be inconsistent with its expected to violate the directors’ fiduciary duties under Applicable Law; provided, further, that the Company shall advise Parent orally and in writing no later than 24 hours after any such release or waiver and the Company shall promptly provide such release or waiver. The Subject to Section 6.04(b) and Section 6.04(c), on the date hereof, the Company shall, and shall cause each any of its Subsidiaries and its and their respective Representatives to, to cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives and financing sources conducted prior to the date hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations Promptly (but in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to any event within two Business Days) after the date hereof in connection with its consideration of acquiring hereof, the Company or any of shall, and shall cause its Subsidiaries and its and their respective Representatives to request the prompt return or destroy (as provided in the terms destruction of such confidentiality agreement) all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic “data room” access previously granted to any such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Representatives.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by From the remainder of this Section 6.04, from the date hereof Agreement Date until the Effective Time orAcceptance Time, if earlierLaCrosse has agreed that (i) it will not, the termination of this Agreement in accordance with Article 10and will cause its officers, neither the Company nor any of directors and representatives not to, and (ii) it will cause its Subsidiaries nor any of subsidiaries and controlled affiliates and their respective officers or officers, directors shall, and the Company and its Subsidiaries shall representatives not authorize any of its other Representatives to, directly or indirectly, (i) : • solicit, initiate initiate, encourage, facilitate or induce the submission of an Acquisition Proposal (as defined below) by a third party or take any action that could reasonably be expected to result in an Acquisition Proposal from a third party; • enter into, continue or participate in discussions or negotiations with respect to an Acquisition Proposal or take any action to knowingly facilitate or knowingly encourage induce any inquiries attempt to make or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any implement an Acquisition Proposal; • except as required by applicable law, including by way of furnishing provide any person (other than ABC-MART, Purchaser or their respective designees) with any non-public information or data concerning the Company or its Subsidiaries relating to LaCrosse or any assets owned (in whole of its subsidiaries or part) by the Company or its Subsidiaries access to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company LaCrosse or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement subsidiaries; • approve or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of recommend an Acquisition Proposal (or other document contemplating an “Alternative Acquisition Proposal or requiring LaCrosse to abandon or terminate its obligations under the Merger Agreement”); • terminate, amend, modify or (iv) grant waive any waiver, amendment or release rights under any standstill or similar agreements; or • resolve, propose or agree to do any of the foregoing. LaCrosse has agreed that it will, and will cause its subsidiaries and its and their respective officers, directors and representatives to, immediately cease any activities or discussions with any person previously conducted with respect to an Acquisition Proposal and to promptly deny access to any data room containing any confidential information previously furnished to any third party relating to the consideration of any Acquisition Proposal. As an exception to the restrictions described above, at any time prior to the Acceptance Time, LaCrosse may engage or participate in discussions or negotiations with a person and its representatives, and provide confidential information with respect to LaCrosse and its subsidiaries to such person pursuant to a confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing with customary confidentiality and the last sentence of this Section 6.04(a) the Company shall be permitted to waivestandstill provisions, amend, release or fail to enforce any provision but not providing for reimbursement by LaCrosse of any confidentialityfees, “standstill” costs or similar obligation of any Person if expenses, if: • that person has made a bona fide written Acquisition Proposal that the LaCrosse Board of Directors of the Company determines in good faith, after consultation consulting with its outside legal counsel and a financial advisor of nationally recognized reputation, constitutes or would reasonably be expected to result in a Superior Proposal (as defined below); • LaCrosse received the Acquisition Proposal other than as a result of a breach or violation of the no solicitation provisions of the Merger Agreement described above; • the LaCrosse Board has determined in good faith, after consulting with its outside counsel, that the failure to take such action would or would be inconsistent with reasonably likely to be a breach of its fiduciary duties under Applicable Lawobligations to LaCrosse’s shareholders; • contemporaneously with furnishing any confidential information to such person, LaCrosse furnishes such confidential information to ABC-MART (to the extent such information has not been previously furnished to ABC-MART); and • LaCrosse has provided ABC-MART with written notice of its intent to take such action and the basis for such action at least 48 hours prior to taking such action. The Company shallIn addition, LaCrosse has agreed to promptly, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and in all activities, discussions or negotiations, if any, existing as cases within 24 hours of the date receipt of this Agreement with any Third Party an Acquisition Proposal, advise ABC-MART orally and its Representatives with respect to any in writing of LaCrosse’s receipt of an Acquisition Proposal or request for information or other inquiry in connection with or that would could reasonably be expected to lead to an Acquisition Proposal and such notice must include the terms and conditions of such Acquisition Proposal, the Table of Contents identity of the person making the Acquisition Proposal and the nature of any inquiries or contacts. LaCrosse has also agreed to keep ABC-MART informed of the status of all developments affecting the terms and conditions of any such Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives LaCrosse must also provide ABC-MART with 36 hours prior written notice of any meeting of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed LaCrosse Board at which the LaCrosse Board is expected to consider an Acquisition Proposal or a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided change in the terms of such LaCrosse Board Recommendation. LaCrosse may not enter into any agreement (other than a confidentiality agreement) all confidential information furnished with respect to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any an Acquisition Proposal if requested unless and until the Merger Agreement is terminated in accordance with its terms and LaCrosse pays any applicable Termination Fee (as defined below) to do so by Parent, subject to the remaining provisions of this Section 6.04ABC-MART.
Appears in 1 contract
Samples: Merger Agreement (Abc-Mart, Inc.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither (i) General Prohibitions. Neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and nor shall the Company and its Subsidiaries shall not authorize or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other Representatives agents or advisors (“Representatives”) to, directly or indirectly, (iA) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (iiB) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, is seeking to make or could be reasonably expected to make an Acquisition Proposal, (C) fail to make, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or knowingly take any action or make any statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (C), an “Adverse Recommendation Change”), (D) fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any potential Acquisition Proposalclass of equity securities of the Company or any of its Subsidiaries, (iiiE) approve any business combination under the New Jersey Shareholders’ Protection Act or (F) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead instrument relating to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives It is agreed that any violation of the obligations restrictions on the Company set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration by any Representative of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.04.by the Company. 50
Appears in 1 contract
Samples: Agreement and Plan of Merger (Measurement Specialties Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this expressly permitted pursuant to Section 6.046.1(b) and Section 6.1(c), from the date hereof until the Effective Time orCaladrius and Company shall not, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor and shall not authorize or permit any of its Subsidiaries nor their affiliates or Subsidiaries, or any of their respective officers officers, directors, members, interestholders, affiliates, employees, agents, advisors (including financial advisors, attorneys and accountants), consultants or directors shallother representatives (collectively, and the Company and its Subsidiaries shall not authorize any of its other Representatives “Representatives”) to, directly or indirectly, (ia) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead relating to an Acquisition Proposal or Alternative Transaction (iieach, a “Competing Proposal”); (b) enter into, continue or otherwise participate in or encourage any discussions or negotiations withrelating to, or disclose, furnish or afford access to the businessany person or entity any information (including Company’s or its Subsidiaries’ businesses, properties, assets, books or records of the Company records) in connection with, or assist, or cooperate with any of its Subsidiaries person or entity in making or proposing, or take any other action to facilitate, any Competing Proposal or Alternative Transaction; or (c) authorize, enter into any agreement, arrangement or understanding (whether binding or nonbinding, written or oral) relating to, or engage in or consummate, any Third Party with respect Competing Proposal or Alternative Transaction. Except as expressly permitted pursuant to any potential Acquisition Section 6.1(c), the Caladrius Board shall not directly or indirectly (A) fail to make, withdraw, change, modify or condition, in a manner adverse to Purchaser, the recommendation (the “Caladrius Recommendation”) by the Caladrius Board that Caladrius’s stockholders approve the Authorizing Resolution (a “Caladrius Adverse Recommendation Change”), (B) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, a Competing Proposal or Superior Proposal, or (iiiC) enter into any agreement in principle, memorandum of understanding, letter of intent, merger intent or similar document or any agreement, acquisition agreementarrangement, joint venture agreement, option agreement understanding or other similar agreement (but excluding an Acceptable Confidentiality Agreement) commitment providing for a transaction that is the subject of an Acquisition any Competing Proposal (an “Alternative Acquisition Agreement”)or requiring Caladrius or Company to abandon, or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release terminate or fail to enforce consummate any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the transactions contemplated by this Agreement. Caladrius and Company determines in good faith, after consultation with its outside legal counsel, agree that they will take the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts necessary steps to promptly inform its their respective directors, officers, employees and Representatives of the obligations undertaken in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.046.1(a).
Appears in 1 contract
Samples: Interest Purchase Agreement (Caladrius Biosciences, Inc.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company a)Neither Parent nor any of its Subsidiaries shall, nor shall Parent or any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other or their Representatives to, directly or indirectlyindirectly through another Person, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to Parent or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Parent or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that has made, is seeking to any potential make or would reasonably be expected to make, an Acquisition Proposal, (iii) enter into either fail to make, or withdraw or modify in a manner adverse to the Company or SpinCo, the Parent Board Recommendation, fail to recommend against acceptance of any agreement in principletender or exchange offer for Parent Common Stock within 10 Business Days after the commencement of such offer or approve, memorandum of understandingresolve to approve, letter of intentadopt or recommend, merger agreementor propose publicly to approve, acquisition agreementresolve to approve, joint venture agreementadopt or recommend, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an any Acquisition Proposal (any of the foregoing in this clause (iii), an “Alternative Acquisition AgreementAdverse Recommendation Change”), or (iv) either fail to enforce, or grant any waiver, amendment waiver or release under under, any standstill or confidentiality similar agreement concerning an Acquisition Proposal; provided that notwithstanding with respect to any class of equity securities of Parent or any of its Subsidiaries unless the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Parent Board of Directors of the Company determines in good faithdetermines, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Delaware Law. The Company shall, and shall cause each (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of its Subsidiaries and its and their respective Representatives toDelaware Law, cease immediately and cause or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any an Acquisition Proposal or that would reasonably be expected to lead to an consummate any Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives It is agreed that any violation of the obligations restrictions on Parent set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration by any Subsidiary of acquiring the Company Parent or any Representative of Parent or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.04by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Westinghouse Air Brake Technologies Corp)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from After the date hereof until and prior to the Effective Time or, if earlier, earlier of the termination of this Agreement in accordance with Article 10and the Acceptance Time, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize (and the Company shall use its reasonable best efforts to cause its or any of its Subsidiaries’ officers or directors, investment bankers, attorneys, accountants, consultants or other Representatives agents or advisors (collectively, “Representatives”) not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party Person with respect to any potential inquiries regarding, or the making of, an Acquisition Proposal, (iii) fail to make, withdraw, modify or amend in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or knowingly take any action or make any statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or under the Company Rights Agreement, (v) take any action to render the restrictions on a “control share acquisition” set forth in Section 302A.671 of the MBCA inapplicable to any transaction, (vi) approve any transaction under, or any Person becoming an “interested shareholder” under, Section 302A.673 of the MBCA or (vii) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or other than a confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) with a Person to whom the Company shall be is permitted to waive, amend, release or fail to enforce provide information in accordance with Section 7.04(b)). It is agreed that any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors violation of the restrictions on the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration by any Representative of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.04by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Adc Telecommunications Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10or the Effective Time, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallwhichever occurs first, Northstar will not, and the Company will use its best efforts to cause its officers, directors, employees, representatives and its Subsidiaries shall agents (including, without limitation, attorneys, investment bankers and accountants) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries inquiry, proposal, offer or the making indication of interest from any proposal or offer person that constitutes, constitutes or would reasonably be expected to lead toto any Acquisition Proposal (as hereinafter defined) or agree to or endorse, approve or recommend any Acquisition Proposal, including by way of furnishing or enter into discussions or negotiate with or provide any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person person in furtherance of an Acquisition Proposal any such inquiries or if it would reasonably be expected to lead to an Acquisition Proposal obtain or (ii) enter into, continue or otherwise participate in approve any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, and Northstar shall immediately notify Buyer of all relevant terms of any such inquiries or proposals received by Northstar or by any such officer, director, employee, representatives or agents, related to any of such matters, any material change in the details (iiiincluding any amendments or proposed amendments) enter into of any agreement such inquiries or proposals, the identity of each of the persons making such inquiries or proposals, and, if such inquiry or proposal is in principlewriting, memorandum Northstar shall immediately deliver or cause to be delivered to Buyer a copy of understandingsuch inquiry or proposal; provided, letter of intenthowever, merger agreementthat if, acquisition agreementprior to the Effective Time, joint venture agreement, option agreement or other similar agreement (but excluding Northstar shall receive an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an unsolicited Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faithNorthstar Board, after consultation with its outside legal counsel, reasonably believes that the failure it has a fiduciary duty to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shallconsider, then Northstar, without violating this Agreement, may thereafter furnish information to and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, enter into discussions or negotiations, if any, existing as of the date negotiations with such third party. Nothing contained in this Section 8.5(a) or any other provision of this Agreement with any Third Party and its Representatives with respect shall prevent the Northstar Board, after receiving an opinion of outside counsel to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees effect that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested is required to do so by Parentin order to discharge properly its fiduciary duties, subject from considering, negotiating, approving and recommending to the remaining provisions shareholders of Northstar an unsolicited, bona fide written Acquisition Proposal which the Northstar Board determines in good faith (i) would result in a transaction more favorable to Northstar's shareholders than the transaction contemplated by this Agreement and (ii) is made by a person financially capable of consummating such Acquisition Proposal (any such Acquisition Proposal being referred to herein as a "Superior Proposal"). If the Northstar Board shall have resolved to accept or accepted a Superior Proposal then, upon written notice to Buyer, Northstar may pursuant to Section 6.04.7.1(g), terminate this Agreement and the transactions contemplated hereby. For purposes hereof, "
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ennis Business Forms Inc)
No Solicitation; Other Offers. (a) Except as provided by From and after the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, earlier of the Closing or the termination of this Agreement in accordance with Article 10Section 9.01, neither and except as otherwise provided for in this Agreement, Sellers shall not, and shall cause each of their Representatives and each of the Company nor any of its Subsidiaries nor any Acquired Companies (and each of their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives) not authorize any of its other Representatives to, directly or indirectly, : (i) solicit, initiate initiate, seek or knowingly encourage, facilitate, induce or support, or take any action to knowingly facilitate solicit, initiate, seek or knowingly encourage encourage, facilitate, induce or support any inquiries announcement, communication, inquiry, expression of interest, proposal or offer that constitutes or that could reasonably be expected to lead to, an Acquisition Proposal from any Person but Purchaser; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Purchaser; (iii) furnish to any Person other than Purchaser or its Representatives any information that could reasonably be expected to be used for the making purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal from a Person other than Purchaser, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an from a Person other than Purchaser; (iv) accept any Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement arrangement or other similar agreement understanding (but excluding an Acceptable Confidentiality Agreementwhether written or oral) providing for a the consummation of any transaction that is the subject of an contemplated by any Acquisition Proposal (an “Alternative or otherwise relating to any Acquisition Agreement”), Proposal with any Person other than Purchaser and its Representatives; or (ivv) grant submit any waiver, amendment Acquisition Proposal or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding matter related thereto to the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors vote of the Company determines 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 Lawequity holders of GGC . The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with Section 9.01, Sellers shall promptly (and in any Third Party event at Purchaser’s request and its Representatives with respect otherwise within 24 hours) provide Purchaser with: (i) an oral and a written description of any inquiry, expression of interest, proposal or offer relating to any a possible Acquisition Proposal (including any modification thereto), or any request for information that would could reasonably be expected to lead to an be used for the purposes of formulating any inquiry, expression of interest, proposal or offer regarding a possible Acquisition Proposal. The , that is received by any Acquired Company shall use its commercially reasonable efforts to promptly inform its Representatives or any Representative of any Acquired Company from any Person (other than Purchaser), including in such description the identity of the obligations in this Section 6.04. The Company also agrees that it will promptly Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”) and (ii) a copy of each Person that has executed a confidentiality agreement prior to written communication and an accurate summary of each other communication transmitted on behalf of the date hereof in connection with its consideration of acquiring the Company Other Interested Party or any of its Subsidiaries Representatives to return any Acquired Company or destroy (as provided in the terms any Representative of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by any Acquired Company or transmitted on behalf of it any Acquired Company or any Representative of any Acquired Company to the Other Interested Party or any of its SubsidiariesRepresentatives. The Company All information provided by Seller to Purchaser and its Subsidiaries Representatives pursuant to this Section 5.03(c) shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, be kept confidential and be subject to the remaining terms and provisions of this Section 6.04the Confidentiality Agreement.
Appears in 1 contract
Samples: Equity Purchase Agreement (Esports Entertainment Group, Inc.)
No Solicitation; Other Offers. (a) Except as provided by Subject to Section 7.07(b), BHI agrees that from and after the remainder date of this Section 6.04Agreement, from it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its and its Representatives’ discussions and negotiations with any other Person (other than GE or its Affiliates) regarding any Alternative Proposal (as hereinafter defined), (ii) promptly request, and cause to be requested that, each Person that has received confidential information in connection with a possible Alternative Proposal within the last twelve (12) months return to BHI or destroy all confidential information heretofore furnished to such Person by or on behalf of BHI and the BHI Subsidiaries and (iii) not grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement entered into or amended during the twelve (12) months prior to the date hereof until in respect of a proposed Alternative Proposal unless the Effective Time or, if earlier, Board of Directors of BHI concludes in good faith that a failure to take any action described in this clause (iii) would reasonably likely be inconsistent with the termination directors’ fiduciary obligations to BHI’s stockholders under applicable Law. From and after the date of this Agreement in accordance with Article 10Agreement, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallsubject to Section 7.07(b) and Section 9.03, and the Company and its Subsidiaries BHI shall not authorize any of its other Representatives tonot, directly or indirectly, nor shall BHI authorize or permit any BHI Subsidiary or any of its or their respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors (a “Representative”) to, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any non-public information inquiry, proposal or data concerning offer, or the Company making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its Subsidiaries stockholders) which constitutes or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would be reasonably be expected to lead to an Acquisition Proposal or Alternative Proposal, (ii) except for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 7.07(b), or a definitive agreement entered into or to be entered into concurrently with a termination of this Agreement by BHI pursuant to Section 9.03, approve or enter intointo a letter of intent, continue memorandum of understanding or other contract with any Person, other than GE, for, constituting or otherwise participate in any discussions or negotiations with, or afford access relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition an Alternative Proposal, (iii) enter into provide or cause to be provided any agreement information or data relating to BHI or any BHI Subsidiary in principleconnection with, memorandum of understandingor in response to, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition any Alternative Proposal (an “Alternative Acquisition Agreement”)by any Person, or (iv) grant terminate, amend, waive or permit the waiver of any waivervoting restriction contained in the organizational or governing documents of BHI, amendment or release under take any standstill action contemplated by paragraph (a)(1) of Section 203 of the DGCL. Without limiting the generality of the foregoing, BHI acknowledges and agrees that, in the event any officer, director or confidentiality agreement concerning an Acquisition Proposal; provided financial advisor of BHI takes any action that notwithstanding the foregoing and the last sentence if taken by BHI would be a breach of this Section 6.04(a) 7.07, the Company taking of such action by such officer, director or financial advisor shall be permitted deemed to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed constitute a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions breach of this Section 6.047.07 by BHI.
Appears in 1 contract
Samples: Limited Liability Company Agreement (General Electric Co)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier7.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of and its and their respective officers or directors shalland directors, and the Company shall direct and use reasonable best efforts to cause its Subsidiaries shall employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate initiate, or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead tosubmission of, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to any Acquisition Proposal, other than a statement contemplated by Rule 14d-9(f) under the 1934 Act during the initial period of ten (10) business days following the commencement of the Acquisition Proposal, shall be considered an adverse modification, recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal), or take any action or make any statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), instrument constituting or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Third Party (or its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts actions to enforce make any confidentiality agreements entered into with state takeover statute (including any Person in connection with Delaware state takeover statute) or similar statute inapplicable to any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the The Company nor any shall and shall cause each of its Subsidiaries nor any and each of their respective officers Affiliates and Representatives to promptly request any such Person or directors shallPersons (other than Parent and Merger Subsidiary or their Representatives) with whom there have been any such discussions, and activities or negotiations regarding an Acquisition Proposal at any time to promptly return or destroy all confidential information concerning the Company and its Subsidiaries in accordance with the applicable confidentiality agreement between the Company and such Person. Subject to the provisions of this Section 5.02, the Company shall not authorize any and shall cause each of its other Subsidiaries not to, and shall direct the Company’s and its Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to initiate, knowingly facilitate facilitate, or knowingly encourage any inquiries encourage, the making, submission or the making public announcement of any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead toconstitute, any an Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations or otherwise cooperate regarding an Acquisition Proposal with, or afford access to the business, properties, assets, books or records of the Company or furnish any of its Subsidiaries nonpublic information regarding an Acquisition Proposal to, any Third Party with respect to any potential Person that has made an Acquisition Proposal, except that the Company and its Representatives shall be entitled to notify such Person as to the existence of the provisions of this Section 5.02, (iii) enter into any agreement in principle, memorandum of understanding, written letter of intent, merger agreement, acquisition agreement, joint venture agreement, option contract or agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of in principle regarding an Acquisition Proposal (except for confidentiality agreements permitted under Section 5.02(d), an “Alternative Acquisition Agreement”)), or (iv) grant take any waiver, amendment or release under action to make the provisions of any standstill or confidentiality agreement concerning Anti-Takeover Statute inapplicable to any transaction contemplated by an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a, (v) the Company shall be permitted to waiveterminate, amend, release release, modify or fail to enforce any provision of of, or grant any permission, waiver or request under, any confidentiality, “standstill” standstill or similar obligation of any Person if the Board of Directors of agreement entered into by the Company determines 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. The Company shall, and shall cause each respect of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as in contemplation of the date of this Agreement with any Third Party and its Representatives with respect to any an Acquisition Proposal or that would reasonably be expected (vi) publicly propose to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives do any of the obligations foregoing (in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection case other than disclosure of and compliance with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Metropolitan Health Networks Inc)
No Solicitation; Other Offers. (a) Except as provided by Subject to the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 106.03, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall cause their respective officers, directors and employees and instruct their investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it offer or inquiry that would reasonably be expected to lead to an any Acquisition Proposal or Proposal, (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way, or assist, participate in, knowingly facilitate or otherwise knowingly encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make (including by failing to include in the Proxy Statement), withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (v) approve any transaction under, or any Person becoming an “interested shareholder” under the business combination provisions of South Dakota Law (Section 47-33-17 to Section 47-33-19, inclusive), (vi) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”)Proposal, or (ivvii) grant publicly propose to do any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawforegoing. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal Proposal, shall promptly send written notice demanding that any such Third Party or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives in possession of the obligations non-public information in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration respect of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of all such confidentiality agreement) information, and shall promptly terminate all confidential information furnished physical and electronic data access previously granted to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Persons.
Appears in 1 contract
No Solicitation; Other Offers. The Company shall not, and shall cause its Representatives, officers, employees, directors, agents, stockholders and other holders of Company Securities, agents, Subsidiaries and Affiliates, and their respective Affiliates (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earliercollectively, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall “Sellers Group”) not authorize any of its other Representatives to, directly or indirectly: (a) initiate, (i) solicit, initiate entertain, negotiate, accept or take any action to knowingly facilitate materially discuss, directly or knowingly encourage any inquiries or the making of indirectly, any proposal or offer that constitutesfrom any Person or group of Persons other than Parent and its Affiliates to acquire all or any significant part of the business and properties, capital stock or would reasonably be expected to lead tocapital stock equivalents of any Company Entity, any whether by merger, purchase of stock, purchase of assets, tender offer or otherwise (an “Acquisition Proposal, including by way of furnishing ”) or enter into a Contract with any Person (other than Parent or its Affiliates) regarding an Acquisition Proposal; (b) provide any non-public information to any third party in connection with an Acquisition Proposal; or data concerning (c) enter into any Contract requiring the Company to abandon, terminate or its Subsidiaries fail to consummate the transactions contemplated by this Agreement and the other Transaction Documents. The Company agrees to immediately notify Parent if any member of the Sellers Group receives any indications of interest, requests for information or any assets owned (offers in whole or part) by the Company or its Subsidiaries to any Person in furtherance respect of an Acquisition Proposal Proposal, and shall communicate to Parent in reasonable detail the terms of any such indication, request or if it would reasonably offer, and shall provide Parent with copies of all written communications relating to any such indication, request or offer. Except for the terms contained within the Promissory Note, the Company represents (which representation is deemed to be expected a representation made under ARTICLE III for all purposes of this Agreement) that no member of the Sellers Group is party to lead or bound by any agreement with respect to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access other than under this Agreement. Parent shall have the right and remedy to have the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.046.07 specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any breach or threatened breach thereof may cause irreparable injury to Parent and that money damages may not provide an adequate remedy to Parent, which right and remedy shall be independent of all others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Parent under law or in equity.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From and after the date hereof until the Effective Time or, if earlier, earlier of the Closing or the termination of this Agreement in accordance with Article 10its terms, neither except with the prior written consent of Purchaser, Seller shall not, and shall cause each Smartposting Group Company nor any and each of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall Smartposting Companies’ Representatives not authorize any of its other Representatives to, directly or indirectly, (ia) solicit, initiate initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to knowingly facilitate solicit, initiate, facilitate, support, seek, induce, entertain or knowingly encourage any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Purchaser, (c) furnish to any Person other than Purchaser any information that Seller or Smartposting believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, any an Acquisition Proposal, including by way of furnishing (d) accept any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to lead to an any Acquisition Proposal or (iie) enter into, continue submit any Acquisition Proposal or otherwise participate in any discussions or negotiations with, or afford access matter related thereto to the business, properties, assets, books or records vote of the Company or any stockholders of its Subsidiaries toSmartposting. Except with the prior written consent of Purchaser, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company Seller shall, and shall cause each Smartposting Company and each of its Subsidiaries and its and their respective Smartposting Companies’ Representatives to, to immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of negotiations with any Persons conducted prior to or on the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser with: (i) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Proposal, or any request for information that would could reasonably be expected to lead to an be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees , that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the is received by any Smartposting Group Company or any Representatives of its Subsidiaries to return any Smartposting Group Company from any Person (other than Purchaser), including in such description the identity of the Person from which such expression of interest, inquiry, proposal, offer or destroy request for information was received (as provided in the “Other Interested Party”) and the material financial terms of such confidentiality agreementexpression of interest, inquiry, proposal, offer or request for information; and (ii) all confidential information furnished to such Person prior to the date hereof by or a copy of each written communication and a complete summary of each other communication transmitted on behalf of it the Other Interested Party or any of its Subsidiaries. The the Other Interested Party’s Representatives to any Smartposting Group Company and its Subsidiaries shall use commercially reasonable efforts to enforce or any confidentiality agreements entered into with Representatives of any Person in connection with Smartposting Group Company or transmitted on behalf of any Acquisition Proposal if requested to do so by Parent, subject Smartposting Group Company or any Representatives of any Smartposting Group Company to the remaining provisions Other Interested Party or any of this Section 6.04the Other Interested Party’s Representatives.
Appears in 1 contract
Samples: Share Purchase Agreement (IE LTD)
No Solicitation; Other Offers. (a) Except as provided by in this Section 5.15(a) or in Section 5.15(b), from and after the remainder date of this Section 6.04, from Agreement until the date hereof until earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with pursuant to Article 10VII, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors (i) shall, and shall cause its Subsidiaries and the respective Representatives of the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly immediately cease and cause to be terminated any discussions or indirectlynegotiations with any Person conducted heretofore with respect to an Acquisition Proposal, (iii) shall not, and it shall cause its Subsidiaries and their respective Representatives not to, (A) solicit, initiate or knowingly take any action designed to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or partB) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations with, or afford access furnish any nonpublic information relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect that to any potential the knowledge of the Company is seeking to make, or has made, an Acquisition Proposal, or (iiiC) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or Proposal; provided, however, that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations nothing contained in this Section 6.045.15 or any other provision of this Agreement shall prohibit the Company or the Company Board, directly or indirectly through advisors, agents or other intermediaries, from (1) taking and disclosing to the Stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (2) making any disclosure to the Stockholders, if, based on advice from outside counsel, the Company Board determines in good faith that failing to do so would be reasonably likely to violate its fiduciary duty under applicable Laws. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement Notwithstanding the foregoing, prior to obtaining the date hereof in connection with its consideration Company Stockholder Approval, the Company or the Company Board, directly or indirectly through advisors, agents or other intermediaries, may furnish information concerning the businesses, properties or assets of acquiring the Company or any of its Subsidiaries to return any Person or destroy group including furnishing nonpublic information pursuant to an appropriate confidentiality agreement (as provided that such confidentiality agreement is not more favorable to such person than the Confidentiality Agreement and the same nonpublic information has been or is simultaneously provided to Parent), and may engage in discussions and negotiations with such Person or group concerning an Acquisition if, and only if: (x) such Person or group has, after the date hereof, submitted an unsolicited Acquisition Proposal which the Company Board determines in good faith is reasonably likely to result in a Superior Proposal, or (y) the Company Board determines in good faith, based upon advice of outside counsel, that failing to do so would be reasonably likely to violate the Company Board’s fiduciary duties to the Stockholders under applicable Law. The Company shall promptly notify Parent of the material terms of such confidentiality agreement) all confidential information furnished to such Person prior to any proposal or inquiry received by the Company from a Third Party after the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts with respect to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Document Sciences Corp)
No Solicitation; Other Offers. (a) Except as provided by Until the remainder earlier of this Section 6.04, from the date hereof until the Effective Time or, if earlier, or the termination of this Agreement in accordance with Article 10its terms, neither the no Company nor any of its Subsidiaries nor any of their respective officers or directors Group Member shall, and the Company and its Subsidiaries each shall not authorize any cause each of its other Representatives not to, directly or indirectly, (i) solicit, initiate or encourage, or take any action to knowingly facilitate solicit, initiate or knowingly encourage any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent, (iii) furnish to any Person other than Parent any information that any Company Group Member believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (iiiv) enter into, continue accept any Acquisition Proposal or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement arrangement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) understanding providing for a the consummation of any transaction that is the subject of an contemplated by any Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant otherwise relating to any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the . Each Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company Group Member shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of negotiations with any Persons conducted prior to or on the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts shall, within two business (2) days after receipt, advise Parent of (A) any formal or informal inquiry, expression of interest, proposal or offer relating to promptly inform its Representatives an Acquisition Proposal, (B) the material terms thereto and (C) the identity of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration or group making such inquiry, expression of acquiring the Company interest, proposal or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04offer.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier6.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company shall direct its and its Subsidiaries shall their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other authorized agents, advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any an Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect that to any potential the knowledge of the Company is seeking to make, or has made, an Acquisition Proposal, (iii) withdraw, qualify or modify in a manner adverse to Parent or publicly propose to withdraw, qualify or modify in a manner adverse to Parent the Company Board Recommendation, or recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal (any of the foregoing in this clause (iii), whether taken by the Company’s Board of Directors or a committee thereof, an “Adverse Recommendation Change”), (iv) terminate, amend, modify, grant any waiver or release under or fail to enforce any standstill, confidentiality or similar agreement with respect to any equity or voting securities of the Company or any of its Subsidiaries, or publicly propose to do any of the foregoing, or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), instrument constituting or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries to, and its and shall instruct their respective Representatives to, cease immediately and cause to be terminated terminate any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal and shall instruct any such Third Party (or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.046.03(b), from the date hereof until the earlier of (i) the Effective Time or, if earlier, and (ii) the termination of this Agreement in accordance with Article 10its terms, neither the Company (whether acting through its Board of Directors, the Special Committee or otherwise) nor any of its Subsidiaries nor any of their respective officers or directors shall, and nor shall the Company and its Subsidiaries shall not authorize or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other Representatives agents or advisors to, directly or indirectly, (iw) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries relating to (or the making of any proposal or offer that constitutes, or would which may reasonably be expected to lead to), or the submission of, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (iix) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access furnish any nonpublic information relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or assist, facilitate, participate in or knowingly encourage any effort by, any Third Party with respect that is seeking to any potential make, has indicated an interest or intention in making, or has made or may reasonably be expected to make an Acquisition Proposal, (iiiy) recommend a Superior Proposal or withdraw, qualify or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub (any of the foregoing in this clause (y), an “Adverse Recommendation Change”) or (z) enter into any (or amend or modify any existing) agreement in principle, memorandum of understanding, letter of intent, merger term sheet, confidentiality agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement or instrument (but excluding an Acceptable Confidentiality Agreementwhether or not binding) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waiveprovided, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faith, after consultation with its outside legal counselhowever, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable LawCompany may extend the expiration of the confidentiality agreements currently in effect between the Company and each of Xxxxxx X. Xxxxxxx and Vector Capital Corporation. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all activitiesexisting solicitation, discussions encouragement, discussion, negotiation or negotiationsother action conducted by the Company, if anyany Company Subsidiary or any of its or their officers, existing as of the date of this Agreement with any Third Party and its Representatives directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts not release any third party from, or waive any provision of, any confidentiality or standstill agreement to promptly inform its Representatives of which it is a party and the obligations in this Section 6.04. The Company also agrees that it will to promptly request each Person person that has executed a confidentiality agreement within 12 months prior to the date hereof (other than Xxxxxx X. Xxxxxxx or Vector Capital Corporation) in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any of its Subsidiaries, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such person by or on behalf of the Company or any of its Subsidiaries and, if requested by Parent, to return or destroy (as provided in the terms of enforce such confidentiality agreement) all confidential information furnished person’s obligation to such Person prior to the date hereof by or on behalf of it or any of its Subsidiariesdo so. The Company and its Subsidiaries shall use commercially reasonable efforts not take any action to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to make the remaining provisions of Section 203 of Delaware Law inapplicable to any transaction other than the transactions contemplated by this Section 6.04Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Inter Tel (Delaware), Inc)
No Solicitation; Other Offers. (a) Except as provided by During the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlierInterim Period, the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any and shall cause each of its Subsidiaries nor any Representatives and each of the other Acquired Companies (and each of their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate initiate, facilitate, knowingly induce or engage or take any action to solicit, initiate, facilitate, knowingly facilitate induce or knowingly encourage engage in any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent, (iii) furnish to any Person other than Parent any information that the Company believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal, including by way of furnishing (v) submit any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access matter related thereto to the businessvote of the stockholders of the Company, properties, assets, books (vi) amend or records grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or the other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), Acquired Companies or (ivvii) grant resolve, propose or agree to do any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawforegoing. The Company shall, From and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of following the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring Agreement, the Company or further agrees not to, and to cause each other Acquired Company not to, release any of its Subsidiaries to return or destroy (as provided Persons described in the terms preceding sentence from any obligations under such non-disclosure or similar agreements without the prior written consent of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by Subject to Section 7.07(b), BHI agrees that from and after the remainder date of this Section 6.04Agreement, from it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its and its Representatives’ discussions and negotiations with any other Person (other than GE or its Affiliates) regarding any Alternative Proposal (as hereinafter defined), (ii) promptly request, and cause to be requested that, each Person that has received confidential information in connection with a possible Alternative Proposal within the last twelve (12) months return to BHI or destroy all confidential information heretofore furnished to such Person by or on behalf of BHI and the BHI Subsidiaries and (iii) not grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement entered into or amended during the twelve (12) months prior to the date hereof until in respect of a proposed Alternative Proposal unless the Effective Time or, if earlier, Board of Directors of BHI concludes in good faith that a failure to take any action described in this clause (iii) would reasonably likely be inconsistent with the termination directors’ fiduciary obligations to BHI’s stockholders under applicable Law. From and after the date of this Agreement in accordance with Article 10Agreement, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shallsubject to Section 7.07(b) and Section 9.03, and the Company and its Subsidiaries BHI shall not authorize any of its other Representatives tonot, directly or indirectly, nor shall BHI authorize or permit any BHI Subsidiary or any of its or their respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors (a “Representative”) to, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any non-public information inquiry, proposal or data concerning offer, or the Company making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its Subsidiaries stockholders) which constitutes or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would be reasonably be expected to lead to an Acquisition Proposal or Alternative Proposal, (ii) except for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 7.07(b), or a definitive agreement entered into or to be entered into concurrently with a termination of this Agreement by BHI pursuant to Section 9.03, approve or enter intointo a letter of intent, continue memorandum of understanding or other contract with any Person, other than GE, for, constituting or otherwise participate in any discussions or negotiations with, or afford access relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition an Alternative Proposal, (iii) enter into provide or cause to be provided any agreement information or data relating to BHI or any BHI Subsidiary in principleconnection with, memorandum of understandingor in response to, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition any Alternative Proposal (an “Alternative Acquisition Agreement”)by any Person, or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waiveterminate, amend, release waive or fail to enforce any provision permit the waiver of any confidentialityvoting restriction contained in the organizational or governing documents of BHI, “standstill” or similar obligation take any action contemplated by paragraph (a)(1) of any Person if the Board of Directors Section 203 of the Company determines DGCL. Without limiting the generality of the foregoing, BHI acknowledges and agrees that, in good faiththe event any officer, after consultation with its outside legal counseldirector or financial advisor of BHI takes any action that if taken by BHI would be a breach of this Section 7.07, that the failure to take taking of such action would by such officer, director or financial advisor shall be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause deemed to be terminated any and all activities, discussions or negotiations, if any, existing as of the date constitute a breach of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof Section 7.07 by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04BHI.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Baker Hughes Inc)
No Solicitation; Other Offers. From the later of the Execution Date and the delivery of the Deposit to Sellers until the first to occur of the Closing or the Termination Date, (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of Sellers and its Subsidiaries nor any of their respective officers or directors shallAffiliates shall not, and the Company and its Subsidiaries shall not authorize any of its officers, directors, employees, investment bankers, attorneys, accountants, consultants, or other Representatives agents or advisors to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any acquisition proposal or offer that constitutesregarding any of the Companies, or would reasonably be expected to lead tothe Transferred Interests, any Acquisition Proposaland/or the Statia Facility, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any confidential information relating to the Companies, the Transferred Interests, and/or the Statia Facility, or afford access to the business, properties, assets, books or records of the Company Companies to, otherwise cooperate in any way with, or assist, participate in, facilitate, or encourage any effort by, any Person (other than Purchaser, its Affiliates and their respective representatives) that is seeking to make, or has made, an acquisition proposal with respect to the Companies, the Transferred Interests, and/or the Statia Facility; and (b) Sellers shall, unless prohibited by Law, notify Purchaser promptly after receipt by Sellers or any of its Subsidiaries tothe Companies, any Third Party with respect to any potential Acquisition Proposalas applicable, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentialityacquisition proposal or any request for confidential information relating to the Companies, “standstill” or similar obligation of the Transferred Interests, and/or the Statia Facility by any Person if the Board of Directors of the Company determines in good faith(other than Purchaser, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its Affiliates and their respective Representatives torepresentatives). Sellers shall, cease immediately unless prohibited by Law or Contract, identify such Person, and cause to be terminated the material terms and conditions of, any such acquisition proposal, indication or request. Sellers shall terminate any and all existing activities, discussions or and negotiations, if any, existing as of the date of this Agreement with any Third Party Person (other than Purchaser, its Affiliates and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement their respective representatives) conducted prior to the date hereof with respect to any acquisition proposal in connection with its consideration respect of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in Companies, the terms of such confidentiality agreement) all confidential information furnished to such Person prior to Transferred Interests, and/or the date hereof by or on behalf of it or any of its SubsidiariesStatia Facility. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.SHARE PURCHASE AND SALE AGREEMENT Page 42
Appears in 1 contract
Samples: Share Purchase and Sale Agreement (NuStar Energy L.P.)
No Solicitation; Other Offers. (a) Except as provided by The Company shall not, and shall cause the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of Bank and their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate initiate, propose or knowingly encourage (including by way of furnishing non-public information) any inquiries or the making submission of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected otherwise knowingly facilitate any effort or attempt to lead to make an Acquisition Proposal or Proposal; (ii) enter into, continue or otherwise participate in any discussions (other than as necessary to ascertain facts or clarify terms with respect to an Acquisition Proposal that did not result from a breach of this Section 7.05) or negotiations withregarding, or furnish to any Person any non-public information relating to, afford access to the business, properties, assets, books or records Books and Records and Assets of the Company or the Bank in connection with, or otherwise cooperate with any of its Subsidiaries Person with respect to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)or any inquiry, proposal or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning offer that could reasonably be expected to lead to an Acquisition Proposal; or (iii) resolve, propose or agree to do any of the foregoing; provided that notwithstanding if in response to an unsolicited, bona fide written Acquisition Proposal made after the foregoing date hereof and at any time prior to the last sentence time that the Requisite Stockholder Approval is obtained (but not thereafter) in circumstances not involving a breach of this Section 6.04(a) 7.05, the Company shall Board determines in good faith (after consultation with outside legal counsel and its financial advisor) that such Acquisition Proposal constitutes, or could reasonably be permitted expected to waivelead to, amend, release or fail a Superior Proposal and with respect to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of which the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be inconsistent with expected to constitute a breach of its fiduciary duties under Applicable applicable Law. The , then the Company shallmay at any time prior to the time that the Requisite Stockholder Approval is obtained (but in no event after such time), and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives furnish information with respect to any the Company and the Bank to, or enter into discussions with, the Person making such Acquisition Proposal and its Representatives; provided that (1) at least 24 hours prior to furnishing any such information to, or entering into discussions with, such Person, Purchaser receives written notice from the Company of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company enters into with such Person a confidentiality agreement in a form that would reasonably be expected is no less favorable in all material respects to lead the Company than the Confidentiality Agreement and (2) the Company concurrently furnishes all such information provided to an such Person to Purchaser (to the extent such information has not been previously furnished or made available by the Company to Purchaser and Purchaser’s Representatives). Notwithstanding the foregoing, the Company shall not provide any commercially sensitive non-public information to any competitor, except in a manner consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Acquisition ProposalProposals prior to the date hereof. The Company shall use its commercially reasonable efforts to promptly inform ensure that its Representatives are aware of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.047.05(a). The Company shall provide Purchaser with an accurate and complete copy of any confidentiality agreement entered into pursuant to this Section 7.05(a) within 24 hours of the execution thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (1st Century Bancshares, Inc.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.045.03(c) and Section 5.03(d), from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 109, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and nor shall the Company and its Subsidiaries shall not authorize or any of its Subsidiaries authorize or permit any of the directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other Representatives advisors or representatives (collectively, “Company Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries encourage, whether publicly or otherwise, the making submission of any proposal inquiries, proposals or offer offers or any other efforts or attempts that constitutesconstitute, or would may reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any Third Party with respect way with, any inquiries, proposals or offers or any other efforts or attempts that constitute, or may reasonably be expected to lead to, any potential Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent the Company Board Recommendation, or recommend an Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), or (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement term sheet or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or propose or agree to do any of the foregoing. Subject to Section 5.03(c) and Section 5.03(d), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all activitiessolicitation, discussions encouragement, discussion or negotiations, if any, existing as of the date of this Agreement negotiation with any Third Party and Persons conducted heretofore by the Company, its Subsidiaries or any Company Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially (and will cause the Company Representatives to use their) reasonable best efforts to require the other parties thereto to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in accordance with the terms of such confidentiality agreement) all agreement any confidential information previously furnished to such Person prior to by the date hereof by Company, the Company’s Subsidiaries or on behalf of it or any of its Subsidiaries. The the Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Representatives thereunder.
Appears in 1 contract
Samples: Arrangement Agreement (Ipsco Inc)
No Solicitation; Other Offers. (a) Except as provided Subject to Section 6.03(e), until the date on which this Agreement is terminated pursuant to Section 8.01, the Company shall not, nor shall it authorize or permit any of its Subsidiaries, any of its or their respective directors, officers or employees or any financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) retained by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor or any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectlyindirectly through another Person, except as otherwise provided below, (i) solicit, initiate or take any action to knowingly facilitate initiate, or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, (including by way of furnishing any non-public information or data concerning relating to the Company or any of its Subsidiaries Subsidiaries), or knowingly induce or take any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it other action which would reasonably be expected to lead to the making, submission or announcement of, any proposal or inquiry that constitutes, or is reasonably likely to lead to, an Acquisition Proposal, (ii) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a Third Party becoming an “interested shareholder” under, the TBCA), or any restrictive provision of any applicable anti-takeover provision in the Company Charter Documents, inapplicable to any transactions contemplated by an Acquisition Proposal (and, to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of Parent’s Affiliates, under any such provisions), (iiiii) other than informing Persons of the provisions contained in this Section 6.03, enter into, continue or otherwise participate in any discussions or any negotiations with, regarding any Acquisition Proposal or afford access otherwise take any other action to the business, properties, assets, books knowingly facilitate or records of the Company knowingly induce any effort or any of its Subsidiaries to, any Third Party with respect attempt to any potential make or implement an Acquisition Proposal, (iiiiv) enter into approve, endorse or recommend an Acquisition Proposal or any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement memorandum of understanding or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of Contract contemplating an Acquisition Proposal (an “Alternative Acquisition Agreement”), or requiring the Company to abandon or terminate its obligations under the Agreement or deliberately fail to satisfy the Tender Offer Conditions; or (ivv) grant resolve, propose or agree to do any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawforegoing. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all activities, existing discussions or negotiations, if any, existing as of the date of this Agreement negotiations with any Third Party and its Representatives Person previously conducted with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts promptly deny access to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company any data room (virtual or actual) containing any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information previously furnished to such Person prior any Third Party relating to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04any such Third Party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (King Pharmaceuticals Inc)
No Solicitation; Other Offers. (a) Except as provided by Prior to the remainder earlier of this Section 6.04, from the date hereof until Closing and the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Article 10Agreement, neither the Company nor any of its Subsidiaries nor Coyote Entities shall not, and shall direct the officers, directors, managers, members, employees, stockholders, representatives, agents, investment bankers and any of their respective officers or directors shall, and the Company and its Subsidiaries shall Affiliates not authorize any of its other Representatives to, directly or indirectly, (i) pursue, solicit, initiate or take any action to initiate, knowingly facilitate or knowingly encourage or otherwise enter into any inquiries discussions, negotiations, agreements or the making of any proposal other arrangements regarding or offer that constitutes, or which would reasonably be expected to lead to, a sale or other disposition (whether by merger, reorganization, recapitalization or otherwise) of all or any part of the membership interests or any material portion of the assets of any Coyote Entity with any other Person other than Roadrunner or its Affiliates (an “Acquisition Proposal”), (ii) provide any confidential information to any Person other than Roadrunner or its Affiliates and their Representatives, other than information which is provided in the regular course of the Coyote Entities’ business operations to third parties where the Coyote Entities and their officers, directors and Affiliates have no reason to believe that such information will be utilized to evaluate any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or (iii) enter into a Contract with respect to an Acquisition Proposal. Coyote shall, and shall cause its Subsidiaries and direct the officers, directors, members, managers, employees, stockholders, representatives, agents, investment bankers and any of their respective Affiliates to, (A) immediately cease and cause to be terminated, all existing discussions or negotiations with any assets owned (in whole Persons conducted heretofore with respect to, or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would that could reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential an Acquisition Proposal, (iiiB) enter into promptly notify Roadrunner if any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)Proposal, or (iv) grant any waiver, amendment inquiry or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of contact with any Person if the Board of Directors of the Company determines in good faith, with respect thereto which is made after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with Agreement, and a reasonable summary of the details of such contact (including the identity of the third party or third parties and copies of any Third Party proposals and its Representatives a reasonable summary of the specific terms and conditions discussed or proposed); and (C) keep Roadrunner reasonably informed with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives the status of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04foregoing.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (R1 RCM Inc.)
No Solicitation; Other Offers. (a) Except as provided by From the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of and its Subsidiaries nor any of their respective officers or directors shall, and the Company shall instruct and use reasonable best efforts to cause its and its Subsidiaries shall not authorize any of its other Subsidiaries’ respective Representatives to, directly or indirectly, (i) immediately cease and cause to be terminated any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal from any Third Party (except to notify such Person as to the existence of the provisions of this Section 6.03(a)), and (ii) not (A) solicit, initiate initiate, or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would any inquiry, offer or proposal that could reasonably be expected to lead to an any Acquisition Proposal or Proposal, (iiB) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, any Third Party that is seeking to make, or has made, or could reasonably be expected to make any Acquisition Proposal, or (C) enter into any letter of intent or other agreement with respect to any potential Acquisition Proposal, Proposal (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding except for an Acceptable Confidentiality Agreement permitted under Section 6.03(b)) with any Third Party; provided, however, that, notwithstanding anything to the contrary in this Agreement) providing for a transaction , the parties understand and agree that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted may waive in connection with entering into this Agreement any provision in any agreement to which the Company or any Subsidiary thereof is a party that prohibits the counterparty thereto from confidentially requesting the Company to amend or waive the standstill provision in such agreement (i.e., a “don’t ask to waive, amend, release or fail ” provision) to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the extent the Board of Directors of the Company determines 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. The Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence of this Section 6.03(a) by any Representative of the Company shall, and shall cause each of or its Subsidiaries and its and their respective Representatives to, cease immediately and cause to shall be terminated any and all activities, discussions or negotiations, if any, existing as of the date a breach of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition ProposalSection 6.03(a) by the Company. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person any Third Party that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries an Acquisition Proposal to promptly return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person Third Party or its representatives prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts terminate access to enforce any confidentiality agreements entered into with any Person data rooms furnished in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04therewith.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lumos Networks Corp.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from After the date hereof until and prior to the Effective Time or, if earlier, earlier of the termination of this Agreement in accordance with Article 10and the Acceptance Time, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize (and the Company shall use its reasonable best efforts to cause its or any of its Subsidiaries' officers or directors, investment bankers, attorneys, accountants, consultants or other Representatives agents or advisors (collectively, "Representatives") not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party Person with respect to any potential inquiries regarding, or the making of, an Acquisition Proposal, (iii) fail to make, withdraw, modify or amend in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or knowingly take any action or make any statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (iii), an "Adverse Recommendation Change"), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or under the Company Rights Agreement, (v) take any action to render the restrictions on a "control share acquisition" set forth in Section 302A.671 of the MBCA inapplicable to any transaction, (vi) approve any transaction under, or any Person becoming an "interested shareholder" under, Section 302A.673 of the MBCA or (vii) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or other than a confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) with a Person to whom the Company shall be is permitted to waive, amend, release or fail to enforce provide information in accordance with Section 7.04(b)). It is agreed that any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors violation of the restrictions on the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration by any Representative of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.04by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tyco Electronics Ltd.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the Effective Time or, if earliertermination hereof, the termination of this Agreement in accordance with Article 10Company will not, neither the Company nor any of and will cause its Subsidiaries nor any and will use reasonable best efforts to cause the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate solicit or knowingly encourage any inquiries or initiate the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations with, or afford access disclose any nonpublic information relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect Person who, to any potential Acquisition Proposalthe knowledge of the Company, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)considering making, or (iv) grant any waiverhas made, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided PROVIDED that notwithstanding the foregoing Company may negotiate or otherwise engage in discussions with, and the last sentence of this Section 6.04(afurnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal if (w) the Company shall be permitted to waivehas complied with the terms of Section 6.03(b), amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if (x) the Board of Directors of the Company determines in good faithfaith that, after consultation with its outside legal counselbased on the terms and conditions contained in such Acquisition Proposal, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would could reasonably be expected to lead to an Acquisition constitute a Superior Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement , (y) prior to the date hereof in connection with its consideration of acquiring the Company providing any information or any of its Subsidiaries data to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any an Acquisition Proposal if requested Proposal, such Person executes a confidentiality agreement with terms substantially similar to do so by Parent, subject those contained in the Confidentiality Agreement (except as to the remaining standstill provisions, PROVIDED that if the Company so enters into any such confidentiality agreement without standstill provisions substantially similar to those in the Confidentiality Agreement, then Parent shall to the extent of this Section 6.04such difference be relieved of compliance with the Confidentiality Agreement's standstill obligations) and (z) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this expressly permitted pursuant to Section 6.04, from the date hereof until the Effective Time or, if earlier9.11(b) and Section 9.11(c), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and it shall cause its Subsidiaries nor any of and their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives not authorize any of its other Representatives to, directly or indirectly, : (i) solicit, initiate or take any action to knowingly facilitate initiate, entertain or knowingly encourage any inquiries (including by way of providing information) the submission or the making announcement of any proposal inquiries, proposals or offer offers that constitutes, constitute or would reasonably be expected to lead to, to any Acquisition Takeover Proposal, including by way of furnishing ; (ii) provide any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return any Person or destroy group who would reasonably be expected to make any actual or proposed Takeover Proposal; (iii) engage in any discussions or negotiations with respect to any Takeover Proposal; (iv) approve, support, adopt, endorse or recommend any Takeover Proposal; or (v) otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, proposals, offers, discussions or negotiations. Except as provided expressly permitted pursuant to Section 9.11(b) and Section 9.11(c), the Board shall not directly or indirectly (A) fail to make, withdraw, change, modify or condition, in a manner adverse to Parent, the terms of such confidentiality agreementrecommendation by the Board that the Securityholders adopt this Agreement (the “Company Recommendation”), (B) all confidential information furnished approve, endorse or recommend, or publicly propose to such Person prior approve, endorse or recommend, to the date hereof by Securityholders a Takeover Proposal or on behalf of it Superior Proposal or (C) fail to recommend against a tender or exchange offer related to a Takeover Proposal or Superior Proposal in any of its Subsidiaries. The position taken pursuant to Rule 14e-2 under the Exchange Act (any such action referred to in clauses (A)-(C) above, a “Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Adverse Recommendation Change”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (MxEnergy Holdings Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize any of its or their respective officers or directors shallRepresentatives to, and the Company shall instruct, and its Subsidiaries shall cause each Subsidiary and Affiliate, if any, to instruct, each such Representative not authorize any of its other Representatives to, directly or indirectly, (i) solicit, solicit or initiate or take the submission of any action to knowingly facilitate or knowingly encourage any inquiries Acquisition Proposal or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an any Acquisition Proposal Proposal, or, subject to Section 7.03(b), (i) conduct or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any confidentiality, standstill or similar agreement with respect to any potential Acquisition Proposalclass of equity securities of the Company or any of its Subsidiaries, or (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (iii) enter into any binding agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, acquisition option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Contract relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall fail to make or (iv) grant any waiverwithdraw the Board Recommendation, amendment approve or release under any standstill or confidentiality agreement concerning recommend an Acquisition Proposal; provided that notwithstanding , fail to recommend against acceptance of any tender offer or exchange offer for the Company Shares or withdraw any approval by the Compensation Committee referred to in Section 7.07, take any action or make any public statement inconsistent with the Board Recommendation, or resolve or agree to take any of the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce actions (any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faithforegoing, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.“Adverse
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by From and after the remainder date of this Section 6.04Agreement, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors MDC shall, and the Company shall cause its Subsidiaries and its Subsidiaries shall not authorize any of its and their respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other Representatives toadvisors (each, directly or indirectlya “Representative”), to (i) solicitimmediately cease and terminate, initiate or take and cause to be ceased and terminated, all discussions and negotiations with any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company other Person (other than Stagwell or its Subsidiaries Affiliates) regarding any Alternative Proposal (as defined below) or any assets owned (in whole inquiry, expression of interest, proposal, offer or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it request for information that would reasonably be expected to lead to or result in an Acquisition Proposal or Alternative Proposal, (ii) enter intoterminate access by any other Person (other than Stagwell or its Affiliates) to any physical or electronic data room or other access to data or information of MDC, continue in each case relating to, or otherwise participate in any discussions or negotiations connection with, or afford access to the business, properties, assets, books or records of the Company any Alternative Proposal or any inquiry, expression of its Subsidiaries tointerest, any Third Party with respect proposal, offer or request for information that would reasonably be expected to any potential Acquisition lead to or result in an Alternative Proposal, (iii) enter into promptly request that each Person that has received confidential information in connection with any agreement Alternative Proposal or any inquiry, expression of interest, proposal, offer or request for information that would reasonably be expected to lead to or result in principle, memorandum an Alternative Proposal return to MDC or destroy all confidential information heretofore furnished to such Person by or on behalf of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or MDC and its Subsidiaries and (iv) grant any waiverenforce, amendment and not waive or modify or release under or permit the release of any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waivePerson from, amend, release or fail to enforce any provision of any confidentiality, “standstill” non-solicitation, no-hire, standstill or similar obligation agreement entered into or amended in respect of any Person if Alternative Proposal or any inquiry, expression of interest, proposal, offer or request for information that would reasonably be expected to lead to or result in an Alternative Proposal unless the MDC Special Committee or the MDC Board of Directors of the Company determines concludes in good faith, after consultation with its outside legal counsel, that the a failure to take such any action described in this clause (iv) would be inconsistent with its fiduciary duties under Applicable applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated It is agreed that any and all activities, discussions or negotiations, if any, existing as violation of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations restrictions set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration 7.06(a) by any Representative of acquiring the Company MDC or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions constitute a breach of this Section 6.047.06 by MDC.
Appears in 1 contract
Samples: Joinder Agreement (MDC Partners Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company Neither Parent nor any of its Subsidiaries shall, nor shall Parent or any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other or their Representatives to, directly or indirectlyindirectly through another Person, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to Parent or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Parent or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that has made, is seeking to any potential make or would reasonably be expected to make, an Acquisition Proposal, (iii) enter into either fail to make, or withdraw or modify in a manner adverse to the Company or SpinCo, the Parent Board Recommendation, fail to recommend against acceptance of any agreement in principletender or exchange offer for Parent Common Stock within 10 Business Days after the commencement of such offer or approve, memorandum of understandingresolve to approve, letter of intentadopt or recommend, merger agreementor propose publicly to approve, acquisition agreementresolve to approve, joint venture agreementadopt or recommend, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an any Acquisition Proposal (any of the foregoing in this clause (iii), an “Alternative Acquisition AgreementAdverse Recommendation Change”), or (iv) either fail to enforce, or grant any waiver, amendment waiver or release under under, any standstill or confidentiality similar agreement concerning an Acquisition Proposal; provided that notwithstanding with respect to any class of equity securities of Parent or any of its Subsidiaries unless the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Parent Board of Directors of the Company determines in good faithdetermines, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Delaware Law. The Company shall, and shall cause each (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of its Subsidiaries and its and their respective Representatives toDelaware Law, cease immediately and cause or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any an Acquisition Proposal or that would reasonably be expected to lead to an consummate any Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives It is agreed that any violation of the obligations restrictions on Parent set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration by any Subsidiary of acquiring the Company Parent or any Representative of Parent or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.04by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Transportation Systems Holdings Inc.)
No Solicitation; Other Offers. (ai) Except as provided by From the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10or the Effective Time, neither whichever first occurs, the Company nor any of its Subsidiaries nor any of their respective officers or directors shallshall not, and shall cause the Subsidiaries not to, and shall use its best efforts to cause the officers, directors, employees, affiliates, representatives and other agents (including attorneys, investment bankers and accountants) of the Company and its the Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making inquiry, proposal, indication of any proposal interest or offer from any person that constitutes, constitutes or would reasonably be expected to lead toto any Acquisition Proposal (as hereinafter defined) or enter into discussions or negotiate with any person or entity in furtherance of any such inquiries, proposals, indications of interest or offers or to obtain or approve any Acquisition Proposal, including by way of furnishing or agree to or endorse any non-public information or data concerning Acquisition Proposal, and the Company shall immediately notify Acquiror of all relevant terms of any such inquiries, proposals, indications of interest or its Subsidiaries or any assets owned (in whole or part) offers received by the Company or its Subsidiaries any Subsidiary or by any such officer, director, employee, affiliate, representative or agent, relating to any Person of such matters, any material change in furtherance the details (including any amendments or proposed amendments) of an Acquisition Proposal any such inquiries, proposals, indications of interest or offers, the identity of each of the persons or entities making such inquiries, proposals, indications of interest or offers, and, if it would reasonably be expected any such inquiry, proposal, indication of interest or offer is in writing, the Company shall immediately deliver a copy thereof to lead to an Acquisition Proposal or (ii) enter intoAcquiror; provided, continue or otherwise participate in any discussions or negotiations withhowever, or afford access that if, prior to the businessEffective Time, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of shall receive an Acquisition Proposal (an “Alternative Acquisition Agreement”that was not solicited after January 9, 1998), or from a New Bidder (ivas defined below) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faithCompany, after consultation with receiving the written advice of its outside legal counsel, reasonably believes that it has a fiduciary duty to consider, then the failure Company, without violating this Agreement, may thereafter furnish information to take and enter into discussions or negotiations with such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shallNew Bidder making such Acquisition Proposal; provided that, and shall cause each of its Subsidiaries and its and their respective Representatives before furnishing any information to, cease immediately and cause to be terminated any and all activities, or entering into discussions or negotiationsnegotiations with, if anyany such New Bidder, existing as the Company shall have obtained an executed confidentiality agreement containing confidentiality, "standstill" and other customary terms and conditions no less favorable to the Company than the terms and conditions of the date Confidentiality Agreement (as defined in Section 9.5). Neither the Board of Directors of the Company, nor any committee thereof, shall (A) withdraw or modify, in a manner adverse to Acquiror, the approval or recommendation by the Board of Directors or any such committee thereof of this Agreement with or the Merger, (B) approve or recommend any Third Party and its Representatives Acquisition Proposal, (C) enter into any agreement with respect to any Acquisition Proposal, (D) take any action to facilitate any other Acquisition Proposal in any respect, or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in (E) terminate this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person Agreement in connection with any Acquisition Proposal if requested to do so by ParentProposal; provided that, subject to the remaining provisions nothing contained in this Section 4.1(a) or any other provision of this Section 6.04.Agreement shall prevent the Board of Directors or any committee thereof, after receiving an Acquisition Proposal as described in the immediately preceding sentence that, after receiving the written advice of its legal counsel, the Board of Directors reasonably believes that it has a fiduciary duty to consider, from considering, negotiating, approving
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize any of its or their respective officers or directors shallRepresentatives to, and the Company shall instruct, and its Subsidiaries shall cause each applicable Subsidiary, if any, to instruct, each such Representative not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would could reasonably be expected to lead to an any Acquisition Proposal or Proposal, (ii) enter into, continue conduct or otherwise participate engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (C) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement except in connection with the transactions contemplated by this Agreement, or (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreementterm sheet, acquisition agreement, joint venture merger agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning Contract relating to an Acquisition Proposal; provided that notwithstanding . Except as required by the foregoing and fiduciary duties of the last sentence Board of this Section 6.04(a) Directors of the Company shall be permitted to waiveCompany, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if neither the Board of Directors of the Company determines nor any committee thereof shall fail to make, withdraw or modify in good faith, after consultation a manner adverse to Parent the Board Recommendation (or recommend an Acquisition Proposal or take any action or make any statement inconsistent with its outside legal counsel, that the failure Board Recommendation) or resolve or agree to take any such action would be inconsistent with its fiduciary duties under Applicable Law(any of the foregoing, an “Adverse Recommendation Change”). The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Third Party (or its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of and its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by Promptly following the remainder execution of this Agreement, the Seller Parties shall, and shall cause their respective Subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal. Subject to Section 6.045.19(b), from the date hereof of this Agreement until the Effective Time Closing or, if earlier, the termination of date on which this Agreement in accordance with Article 10is terminated pursuant to Section 8.01, neither the Company Seller Parties shall not, nor any of its Subsidiaries nor shall they authorize or permit any of their respective officers Subsidiaries or directors shall, and the Company and its Subsidiaries shall not authorize any of its other their respective Representatives to, directly or indirectly, indirectly through another Person: (i) solicit, initiate or take any action to knowingly encourage, knowingly induce or knowingly facilitate or knowingly encourage take any inquiries other action which would reasonably be expected to lead to, the making, submission or the making of announcement of, any Acquisition Proposal; (ii) enter into, continue or participate in any discussions or any negotiations with any Third Party regarding any proposal or offer that constitutes, or would reasonably be expected to lead toto the making, submission or announcement of, any Acquisition Proposal, including by way of furnishing ; (iii) furnish any non-public information or data concerning regarding the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries Business to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford any Person access to the business, propertiesproperty, assets, books or records of the Company Seller Parties or any of its their respective Subsidiaries to, any Third Party in connection with respect or in response to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (or an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or inquiry that would reasonably be expected to lead to the making, submission or announcement of an Acquisition Proposal; (iv) approve or recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or other contract contemplating an Acquisition Proposal or requiring Seller Parties to abandon or terminate their obligations under this Agreement; (v) waive, terminate, modify or release any Person (other than Purchasers or their respective affiliates) from any provision of or grant any permission, waiver or request under, or fail to enforce, any “standstill” or similar agreement or obligation; (vi) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL; or (vii) resolve or agree to do any of the foregoing. The Company Seller Parties shall, and shall use its commercially reasonable efforts cause their Subsidiaries and their respective Representatives to, immediately cease and cause to be terminated all discussions or negotiations with any Person previously conducted with respect to any Acquisition Proposal. Seller Parties shall promptly inform its Representatives deny access to any data room (whether virtual or actual) containing any confidential information previously furnished to any Third Party relating to the consideration of any Acquisition Proposal by any such Third Party. Without limiting the foregoing, Seller Parties understand, acknowledge and agree that any breach of the obligations set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or preceding sentence by any of its Subsidiaries the Seller Parties’ Subsidiaries, officers, directors, employees, agents, financial advisors or legal advisors shall be deemed to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.045.19(a) by Seller Parties.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04Subject to Section 6.04(b) and Section 6.04(c), from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article Article 10, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its or their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants or other Representatives advisors or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, any Third Party with respect Party, in each case, relating to an Acquisition Proposal or any potential inquiry, proposal or request that would reasonably be expected to lead to an Acquisition Proposal, (iii) (A) withdraw (or qualify or modify in a manner adverse to Parent or Merger Sub), or publicly announce its intention to withhold or withdraw (or so qualify or modify) the Company Board Recommendation (or publicly recommend an Acquisition Proposal), (B) adopt, approve or recommend, or publicly announce its intention to adopt, approve or recommend, or otherwise declare advisable, any Acquisition Proposal, (C) fail to publicly recommend against any Acquisition Proposal structured as a tender offer or exchange offer on Schedule 14D-9 within ten (10) Business Days after the commencement thereof (within the meaning of Rule 14d-2 under the Exchange Act), or (D) fail to include the recommendation of the Board of Directors in favor of approval and adoption of this Agreement and the Merger in any Proxy Statement (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”) or (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture option agreement or other similar instrument providing for an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal other than an Acceptable Confidentiality Agreement (any such agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument relating to an Acquisition Proposal (Proposal, an “Alternative Acquisition Agreement”) (or announce publicly any intention to do so). Subject to Section 6.04(b) and Section 6.04(c), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall use its reasonable best efforts to cause each of its Subsidiaries and its and their respective Representatives to, promptly cease immediately and cause to be terminated any and all activities, existing discussions or negotiationsnegotiations in effect as of the date hereof, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AssetMark Financial Holdings, Inc.)
No Solicitation; Other Offers. (a) Except as provided by From and after the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, earlier of the Closing or the termination of this Agreement in accordance with Article 10Section 9.01, neither and except as otherwise provided for in this Agreement, Sellers shall not, and shall cause each of their Representatives and each of the Company nor any of its Subsidiaries nor any Acquired Companies (and each of their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives) not authorize any of its other Representatives to, directly or indirectly, : (i) solicit, initiate initiate, seek or knowingly encourage, facilitate, induce or support, or take any action to knowingly facilitate solicit, initiate, seek or knowingly encourage encourage, facilitate, induce or support any inquiries announcement, communication, inquiry, expression of interest, proposal or offer that constitutes or that could reasonably be expected to lead to, an Acquisition Proposal from any Person but Purchaser; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Purchaser; (iii) furnish to any Person other than Purchaser or its Representatives any information that could reasonably be expected to be used for the making purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal from a Person other than Purchaser, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an from a Person other than Purchaser; (iv) accept any Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement arrangement or other similar agreement understanding (but excluding an Acceptable Confidentiality Agreementwhether written or oral) providing for a the consummation of any transaction that is the subject of an contemplated by any Acquisition Proposal (an “Alternative or otherwise relating to any Acquisition Agreement”), Proposal with any Person other than Purchaser and its Representatives; or (ivv) grant submit any waiver, amendment Acquisition Proposal or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding matter related thereto to the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors vote of the Company determines 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 Lawequity holders of Helix . The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with Section 9.01, Sellers shall promptly (and in any Third Party event at Purchaser’s request and its Representatives with respect otherwise within 24 hours) provide Purchaser with: (i) an oral and a written description of any inquiry, expression of interest, proposal or offer relating to any a possible Acquisition Proposal (including any modification thereto), or any request for information that would could reasonably be expected to lead to an be used for the purposes of formulating any inquiry, expression of interest, proposal or offer regarding a possible Acquisition Proposal. The , that is received by any Acquired Company shall use its commercially reasonable efforts to promptly inform its Representatives or any Representative of any Acquired Company from any Person (other than Purchaser), including in such description the identity of the obligations in this Section 6.04. The Company also agrees that it will promptly Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”) and (ii) a copy of each Person that has executed a confidentiality agreement prior to written communication and an accurate summary of each other communication transmitted on behalf of the date hereof in connection with its consideration of acquiring the Company Other Interested Party or any of its Subsidiaries Representatives to return any Acquired Company or destroy (as provided in the terms any Representative of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by any Acquired Company or transmitted on behalf of it any Acquired Company or any Representative of any Acquired Company to the Other Interested Party or any of its SubsidiariesRepresentatives. The Company All information provided by Seller to Purchaser and its Subsidiaries Representatives pursuant to this Section 5.03(c) shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, be kept confidential and be subject to the remaining terms and provisions of this Section 6.04the Confidentiality Agreement.
Appears in 1 contract
Samples: Equity Purchase Agreement (Esports Entertainment Group, Inc.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the Effective Time or, if earlieracceptance for payment by Merger Subsidiary of the Shares tendered into the Offer or the earlier termination hereof, the termination of this Agreement in accordance with Article 10Company will not, neither the Company nor any of and will cause its Subsidiaries nor any and the officers, directors, investment bankers, attorneys, accountants, consultants or other agents or advisors of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, to (i) solicit, initiate or take any action (y) to knowingly facilitate solicit or knowingly encourage any inquiries (z) for the primary purpose of initiating or encouraging the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate engage in any substantive discussions or negotiations with, or disclose any material nonpublic information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect Person who the Company should reasonably be expected to know is considering making, or has made, an Acquisition Proposal or (iii) otherwise cooperate in any potential way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person, in each case, for the primary purpose of making any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Offer, the Merger or any other transaction contemplated by this Agreement. The Company will notify Parent promptly after receipt by the 32 Company (or any of its advisors) of any Acquisition Proposal, (iii) enter into or any agreement in principlerequest for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, memorandum books or records of understanding, letter the Company or any of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that its Subsidiaries by any Person who the Company should reasonably be expected to know is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)considering making, or (iv) grant any waiverhas made, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and the directors, officers and other agents of the Company and its and their respective Representatives Subsidiaries to, cease immediately and cause to be terminated all discussions and negotiations with any and all activities, discussions or negotiations, if any, existing as of Persons conducted prior to the date of this Agreement with any Third Party and its Representatives hereof with respect to any Acquisition Proposal or that would reasonably be expected Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14e-2 under the 1934 Act with respect to lead to an any Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gibson Greetings Inc)
No Solicitation; Other Offers. (a) Except as provided by From the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither except as otherwise expressly set forth in this 6.04, the Company nor any of shall not, and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company shall instruct its and its Subsidiaries shall Subsidiaries’ respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 with, or knowingly assist or participate in any effort by any Third Party with respect relating to an Acquisition Proposal or any potential inquiry, expression of interest, proposal or request for information that would reasonably be expected to lead to an Acquisition Proposal (other than requesting the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or would reasonably be expected to result in, a Superior Proposal), (iii) enter into (A) fail to make, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that any agreement in principle, memorandum failure to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of understanding, letter Parent’s written request will be treated as a withdrawal of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement the Company Board Recommendation for purposes hereof (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding Parent makes such request only after a material development has occurred that Parent believes, in good faith, has created public uncertainty as to the foregoing and the last sentence position of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines or whether the Company Stockholder Approval will be obtained and that Parent may only make such request once with respect to any Acquisition Proposal that has not been amended with respect to financial or other material terms)), (B) fail to include the Company Board Recommendation in good faiththe Proxy Statement or (C) recommend, after consultation adopt or approve or publicly propose to recommend, adopt or approve any Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (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 of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its outside legal counsel, Subsidiaries. If any Representative takes any action that the failure Company is obligated pursuant to take such action would this Section 6.04 not to take, then the Company shall be inconsistent with its fiduciary duties under Applicable Lawdeemed for purposes of this Agreement to have breached this Section 6.04. The Company shall, and shall cause each any of its Subsidiaries to, and shall instruct and its and their respective its Subsidiaries’ Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Third Party and its Representatives in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The the Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any a proposed Acquisition Proposal if requested or any inquiry, expression of interest, proposal or request for information that would reasonably be expected to do so by Parent, subject to the remaining provisions of this Section 6.04.44 #92864921v30
Appears in 1 contract
Samples: Execution Version Agreement and Plan of Merger (GAIN Capital Holdings, Inc.)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the Effective Time or, if earlierTime, the termination of this Agreement in accordance with Article 10, neither the Company nor any of shall not and shall cause its Subsidiaries nor any of and its and their respective directors and officers or directors shallnot to, and the Company shall use reasonable best efforts to cause its and its Subsidiaries shall their Representatives not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission by a Third Party of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue engage in or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of books, records, work papers and other documents related to the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way with, or knowingly assist, facilitate or encourage any effort by any Third Party Party, in each case, in connection with respect or in response to any potential an Acquisition Proposal, or any inquiry that would reasonably be expected to lead an Acquisition Proposal, or (iii) enter into any oral or written or binding or non-binding agreement in principle, memorandum of understanding, letter of intent, indication of interest, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning instrument contemplating an Acquisition Proposal; provided that notwithstanding anything to the foregoing contrary in this Agreement, the Company or any of its Representatives may, (A) in response to an unsolicited inquiry or proposal, seek to clarify the terms and conditions of such inquiry or proposal and (B) in response to an inquiry or proposal from a Third Party, inform a Third Party or its Representative of the last sentence restrictions imposed by the provisions of this Section 6.04(a) Section 6.03. The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of, any standstill or similar agreement with respect to any class of equity securities of the Company shall or any of its Subsidiaries, and will enforce or cause to be permitted to waiveenforced each such agreement in accordance with its terms at the request of Parent; provided, amendhowever, release that the Company may waive or fail to enforce any provision of any confidentiality, “standstill” such standstill or similar obligation agreement of any Person if the Company Board of Directors of the Company determines 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 to the Company’s stockholders under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated It is agreed that any and all activities, discussions or negotiations, if any, existing as violation of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The restrictions on the Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations set forth in this Section 6.04. The by any Subsidiary of the Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration or by any non-employee Representative of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in acting at the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by direction of, or on behalf of, a director or senior executive officer of it or any of its Subsidiaries. The the Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions be a breach of this Section 6.046.03(a) by the Company.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors Each Stockholder shall, and the Company shall cause its trustees, representatives, consultants, investment bankers, attorneys, accountants and other agents acting in its capacity as such (collectively, a person’s or entity’s “Representatives”) to, immediately cease any discussions, activities or negotiations with any other Person or Persons (other than Parent and Parent’s representatives) that may be ongoing with respect to any Acquisition Proposal. Each Stockholder further agrees that it and its Subsidiaries Representatives (to the extent they are serving as a Representative of a Stockholder) shall not authorize any of its other Representatives to, directly or indirectly, (i) directly or indirectly solicit, initiate initiate, knowingly encourage or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue directly or otherwise indirectly participate in any discussions or negotiations with, furnish any information relating to the Company or afford access to the business, properties, assetsbooks, books records, data or records confidential information of the Company or any of its Subsidiaries to, to any Third Party with respect that is seeking to make, or has made an Acquisition Proposal, or take any potential other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (iii) enter into any agreement in principlerecommend, memorandum of understandingadopt or approve, letter of intentor propose publicly to recommend, merger agreementadopt or approve, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)Proposal, or (iv) grant agree or publicly propose to do any waiver, amendment of the foregoing. Each Stockholder further agrees that it shall promptly notify Parent (but in no event later than forty-eight hours) after receipt by such Stockholder (or release under any standstill or confidentiality agreement concerning an of its Representatives) of any Acquisition Proposal; provided , any inquiry that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall could be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal or of any request for information relating to the Company by any Third Party that to the knowledge of the Stockholder may be considering making, or has made an Acquisition Proposal, which notice shall be provided in writing and shall identify the person making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request (including any material changes thereto and copies of any written materials received from such Third Party or its Representatives in connection therewith). The Company Stockholders shall use its commercially reasonable efforts keep Parent fully informed of any material change to promptly inform its Representatives any Acquisition Proposal, inquiry or request for information. The Stockholders shall enforce, to the fullest extent permitted under applicable law, the provisions of any standstill, confidentiality or similar agreement entered into by the Stockholders or their respective Representatives, including where necessary, seeking to obtain injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. Without limiting the foregoing, Parent and each of the obligations Stockholders agree that any violation of the restrictions set forth in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed 4 by any Representative of a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of Stockholder shall constitute a breach by such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions Stockholder of this Section 6.044.
Appears in 1 contract
No Solicitation; Other Offers. (ai) Except as provided by the remainder of this Section 6.04, from From the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10or the Effective Date, neither whichever first occurs, the Company nor any of its Subsidiaries nor any of their respective officers or directors shallwill not, and will use its best efforts to cause the officers, directors, employees, representatives and agents (including, without limitation, attorneys, investment bankers and accountants) of the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries inquiry, proposal, offer or the making indication of interest from any proposal or offer person that constitutes, constitutes or would reasonably be expected to lead toto any Acquisition Proposal (as hereinafter defined) or agree to or endorse, approve or recommend any Acquisition Proposal, including by way or enter into discussions or negotiate with or provide any information to any person or entity in furtherance of furnishing any non-public information such inquiries or data concerning to obtain or approve any Acquisition Proposal, except that nothing contained in this Section 4.1 or any other provision of this Agreement shall prohibit the Company or its Subsidiaries the Company's Board of Directors from (i) taking and disclosing to the Company's shareholders a position with respect to a tender or any assets owned (in whole or part) exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal Exchange Act, or (ii) enter intomaking such disclosure to the Company's shareholders as, continue in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law, provided that the Company may not, except as permitted by Section 4.1(a)(ii), withdraw or otherwise participate in any discussions or negotiations withmodify, or afford access propose to the businesswithdraw or modify, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party position with respect to the Merger or approve or recommend, or propose to approve or recommend any potential Acquisition Proposal, (iii) or enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by ParentFor purposes hereof, subject to the remaining provisions of this Section 6.04."
Appears in 1 contract
Samples: Agreement and Plan of Merger (Universal Hospital Services Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Subject to Section 6.04, from the date hereof until the Effective Time or, if earlier7.03(b), the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any of and shall cause its Subsidiaries nor any of and its and their respective officers or directors shalland directors, and the Company shall direct and use reasonable best efforts to cause its Subsidiaries shall employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, "Representatives") not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate initiate, or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead tosubmission of, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to any Acquisition Proposal, other than a statement contemplated by Rule 14d-9(f) under the 1934 Act during the initial period of ten (10) business days following the commencement of the Acquisition Proposal, shall be considered an adverse modification, recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal), or take any action or make any statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), an "Adverse Recommendation Change"), (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, option partnership agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), instrument constituting or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning relating to an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of with any Third Party conducted prior to the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company and shall use its commercially reasonable best efforts to promptly inform cause any such Third Party (or its Representatives agents or advisors) in possession of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring confidential information about the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information that was furnished to such Person prior to the date hereof by or on behalf of it the Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts actions to enforce make any confidentiality agreements entered into with state takeover statute (including any Person in connection with Delaware state takeover statute) or similar statute inapplicable to any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Stifel Financial Corp)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, Parent agrees that neither the Company it nor any of its Subsidiaries nor any of their respective the officers and directors of it or directors its Subsidiaries shall, and the Company that it shall cause its and its Subsidiaries shall not authorize Subsidiaries’ employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its other Subsidiaries for services provided in connection with the transactions contemplated by this Agreement whether as of the Original Merger Agreement Date or any time thereafter) (collectively, “Representatives”) not to, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any Acquisition Proposal. Parent further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (i) solicit, initiate or take engage in any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutesnegotiations concerning, or would reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in knowingly encourage or facilitate any discussions effort or negotiations with, attempt to make or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential implement an Acquisition Proposal, (iiiii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement amend or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment waiver or release under any standstill or confidentiality similar agreement concerning with respect to any class of equity securities of Parent or any of its Subsidiaries (unless the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, 2005 between the Company and Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of the Delaware Law, (iv) amend or grant any waiver or release or approve any transaction or redeem any Parent Rights under the Parent Rights Agreement, (v) make any Adverse Parent Recommendation Change in connection with an Acquisition Proposal or (vi) enter into any definitive agreement with respect to an Acquisition Proposal; provided provided, however, that notwithstanding nothing contained in this Agreement shall prevent Parent or its Board of Directors from (1) complying with its disclosure obligations under Sections 14d-9 and 14e-2(a) of the foregoing and the last sentence of this Section 6.04(a) 1934 Act with regard to an Acquisition Proposal; provided, however, that if such disclosure constitutes an Adverse Parent Recommendation Change, the Company shall be permitted have the right to waiveterminate this Agreement as set forth in Section 10.01(c)(i) of this Agreement; and (2) at any time prior to, amendbut not after, release or fail the Parent Stockholder Approval is obtained, (A) providing information in response to enforce any provision of any confidentiality, “standstill” or similar obligation of any a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Parent receives from the Company Person so requesting such information, prior to the provision of any such information, an executed confidentiality agreement on terms no less favorable to Parent than those contained in the Confidentiality Agreement (provided that, such executed confidentiality agreement may contain less favorable standstill provisions as long as the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement are simultaneously waived); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Parent receives from such Person, prior thereto, an executed confidentiality agreement as described in the immediately preceding clause (A); or (C) recommending or making any Adverse Parent Recommendation Change in connection with such an unsolicited bona fide written Acquisition Proposal to the stockholders of Parent, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Parent determines in good faithfaith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties, (y) in each case referred to in clause (B) or (C) above, the Board of Directors of Parent determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal, that if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the failure proposal, the likelihood of obtaining financing, and the Person making the proposal, and if consummated, would result in a transaction more favorable to Parent’s stockholders from a financial point of view than the transactions contemplated by this Agreement taking into account any change proposed by the Company; and (z) in the case of clause (C), the Company shall have had written notice of Parent’s intention to take the action referred to in clause (C) at least 20 Business Days prior to the taking of such action would be inconsistent with its fiduciary duties under Applicable Law. The Company by Parent (which notice shall have attached the most current version of the agreement relating to the Acquisition Proposal in question and a summary of any other material terms relating thereto) and Parent shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, during such 20 Business Day period, negotiate in good faith with the Company with respect to any changes the Company may wish to make with respect to its proposal; provided, that any more favorable Acquisition Proposal referred to in clause (B) or (C) above must constitute an Acquisition Proposal that involves the acquisition, directly or indirectly, of 50% or more of the voting power of the Parent Stock or the assets of Parent and its Subsidiaries taken as a whole (any such more favorable Acquisition Proposal is referred to in this Agreement as a “Superior Proposal”). Parent grees that it will immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement negotiations with any Third Party and its Representatives Person conducted prior to the Original Merger Agreement Date with respect to any Acquisition Proposal Proposal, including any discussions or that would reasonably be expected negotiations with respect to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives the possible sale of the obligations in this Section 6.04Flextech Group. The Company also Parent agrees that it will take the necessary steps to promptly request each Person inform the individuals or entities referred to in the first sentence of this Section 6.08 of the obligations undertaken in this Section 6.08. Parent agrees that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring it will notify the Company promptly, but in any event within 48 hours if any proposals or offers referred to in this Section 6.08 are received by, any such information is requested from, or any of its Subsidiaries such discussions or negotiations are sought to return be initiated or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of continued with, it or any of its SubsidiariesRepresentatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Company informed on a current basis, and, in any event, within 24 hours of any changes in the status, the terms and any other material details of any such proposals or offers, including whether any such proposal has been withdrawn or rejected. The Parent also agrees to provide any information to the Company that it is providing to another Person pursuant to this Section 6.08 at substantially the same time it provides it to such other Person. Parent agrees promptly, but in any event within five days after the Original Merger Agreement Date, to request the return or destruction of all information and materials provided prior to the Original Merger Agreement Date by it, its Subsidiaries Affiliates or their respective Representatives (and any information derived therefrom) with respect to the consideration or making of any Acquisition Proposal (including with respect to the possible sale of the Flextech Group) and Parent shall otherwise use commercially its reasonable best efforts to enforce any confidentiality agreements entered into agreement relating thereto. The parties agree that in determining what actions are necessary for the Board of Directors of Parent to comply with any Person in connection with any Acquisition Proposal if requested their respective fiduciary duties, the Board of Directors may consider the transactions contemplated by this Agreement to do so by Parent, subject be structured as they were under the Original Merger Agreement (except to the remaining provisions extent that the structure under this Agreement eliminates the need for consents of this Section 6.04Third Parties).
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by From the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither except as otherwise expressly set forth in this 6.04, the Company nor any of shall not, and shall cause its Subsidiaries nor any of their respective officers or directors shallnot to, and the Company shall instruct its and its Subsidiaries shall Subsidiaries’ respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 with, or knowingly assist or participate in any effort by any Third Party with respect relating to an Acquisition Proposal or any potential inquiry, expression of interest, proposal or request for information that would reasonably be expected to lead to an Acquisition Proposal (other than requesting the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or would reasonably be expected to result in, a Superior Proposal), (iii) enter into (A) fail to make, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that any agreement in principle, memorandum failure to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of understanding, letter Parent’s written request will be treated as a withdrawal of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement the Company Board Recommendation for purposes hereof (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding Parent makes such request only after a material development has occurred that Parent believes, in good faith, has created public uncertainty as to the foregoing and the last sentence position of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines or whether the Company Stockholder Approval will be obtained and that Parent may only make such request once with respect to any Acquisition Proposal that has not been amended with respect to financial or other material terms)), (B) fail to include the Company Board Recommendation in good faiththe Proxy Statement or (C) recommend, after consultation adopt or approve or publicly propose to recommend, adopt or approve any Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (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 of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its outside legal counsel, Subsidiaries. If any Representative takes any action that the failure Company is obligated pursuant to take such action would this Section 6.04 not to take, then the Company shall be inconsistent with its fiduciary duties under Applicable Lawdeemed for purposes of this Agreement to have breached this Section 6.04. The Company shall, and shall cause each any of its Subsidiaries to, and shall instruct and its and their respective its Subsidiaries’ Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal and shall use its reasonable best efforts to cause any such Third Party and its Representatives in possession of confidential information about the Company or any of its Subsidiaries that was furnished by or on behalf of the Company in connection with a proposed Acquisition Proposal or any inquiry, expression of interest, proposal or request for information that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries Proposal to return or destroy (as provided all such information in accordance with the terms of such applicable confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04agreements.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the The Company nor any of its Subsidiaries nor any of their respective officers or directors shallshall not, and the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or permit any of its Subsidiaries to, and shall use its best efforts to ensure that its officers, directors or employees, or any Third Party investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any of its Subsidiaries do not, solicit, initiate, encourage the submission of any Acquisition Proposal or engage in discussions or negotiations or furnish to any Person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any potential Acquisition Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the majority of the members of the Board of Directors of the Company, after consultation with and advice from outside legal counsel, failure to so disclose would reasonably be deemed to constitute a breach of the fiduciary duties of the Board of Directors under applicable Law. Notwithstanding the first sentence of Section 6.05(a), until the receipt of the Required Vote (as hereinafter defined), the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) a majority of the Board of Directors of the Company determines in good faith, after receiving the advice of a nationally recognized financial advisor, that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal and, after consultation with and advice from outside legal counsel, that the failure to take such action would reasonably be deemed to constitute a breach of its fiduciary duties under applicable Law, and (ii) such Person executes a confidentiality agreement in a form no less favorable to the Company than the Confidentiality Agreement (including the standstill provisions). Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions of such Acquisition Proposal, (iii) and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. Except as permitted by the second sentence of this Section 6.05(d), neither the Board of Directors of the Company nor any committee thereof shall, withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, or take any action not explicitly permitted by this Agreement that would be inconsistent with, its approval of the Offer and the Merger, approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or cause the Company to enter into any letter of intent, agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement commitment or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant related to any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding . Notwithstanding the foregoing and foregoing, until receipt of the last sentence Required Vote, the Board of this Section 6.04(a) Directors of the Company shall be permitted (i) not to waiverecommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, amend(ii) to withdraw, release or fail modify in a manner adverse to enforce Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, (iii) to approve or recommend any provision Superior Proposal or (iv) to terminate this Agreement in accordance with Section 8.01(c)(ii) hereof and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (y) the Company has received an Acquisition Proposal which the Board of any confidentialityDirectors determines in good faith, “standstill” or similar obligation after receiving the advice of any Person if a nationally recognized financial advisor, constitutes a Superior Proposal and (z) the Board of Directors of the Company determines in good faith, after consultation with its and advice from outside legal counsel, that the failure to take such action would could reasonably be inconsistent with deemed to constitute a breach of its fiduciary duties under Applicable applicable Law. The For purposes of this Section 6.05, the parties agree that the scope of the fiduciary duty of the Board of Directors of the Company shallshall not be deemed to be limited or constrained by virtue of the fact that certain stockholders of the Company have agreed in the Voting and Tender Agreement to tender their shares to the Purchaser and to vote in favor of the Merger, and shall cause each of in considering whether its Subsidiaries and its and their respective Representatives to, cease immediately and cause failure to be terminated take any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that action specified above would reasonably be expected deemed to lead be a breach of its fiduciary duties to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives the stockholders of the obligations in this Section 6.04Company under applicable Law, the Board of Directors shall be entitled to assume that the Voting and Tender Agreement has been terminated. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions For purposes of this Section 6.04.Agreement:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hungry Minds Inc /De/)
No Solicitation; Other Offers. (ab) Except as provided by Subject to the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10Section 6.03, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries shall cause their respective officers, directors and employees and instruct their investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it offer or inquiry that would reasonably be expected to lead to an any Acquisition Proposal or Proposal, (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way, or assist, participate in, knowingly facilitate or otherwise knowingly encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) fail to make (including by failing to include in the Proxy Statement), withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (v) approve any transaction under, or any Person becoming an “interested shareholder” under the business combination provisions of South Dakota Law (Section 47-33-17 to Section 47-33-19, inclusive), (vi) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of instrument relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”)Proposal, or (ivvii) grant publicly propose to do any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawforegoing. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal Proposal, shall promptly send written notice demanding that any such Third Party or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives in possession of the obligations non-public information in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration respect of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of all such confidentiality agreement) information, and shall promptly terminate all confidential information furnished physical and electronic data access previously granted to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04Persons.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Raven Industries Inc)
No Solicitation; Other Offers. (a) Except as provided by From the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10or the Effective Time, neither whichever first occurs, the Company nor any of its Subsidiaries nor any of their respective officers or directors shallSellers and the Key Employees shall not, and shall use their best efforts to cause the Company officers, directors, employees, affiliates, representatives and its Subsidiaries shall other agents (including attorneys, investment bankers and accountants) of the Sellers or the Key Employees not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making of any inquiry, proposal or offer from any person that constitutes, constitutes or would reasonably be expected to lead toto any Acquisition Proposal (as hereinafter defined) or enter into discussions or negotiate with any person or entity in furtherance of any such inquiries, proposals or offers or to obtain or approve any Acquisition Proposal, or agree to any Acquisition Proposal, and the Sellers or the Key Employees shall immediately notify the Buyer of all relevant terms of any such inquiries, proposals, or offers received by the Sellers or the Key Employees or by any such officer, director, employee, affiliate, representative or agent, relating to any of such matters, any material change in the details (including by way any amendments or proposed amendments) of furnishing any non-public information such inquiries, proposals or data concerning offers, the Company identity of each of the persons or its Subsidiaries entities making such inquiries, proposals, or offers, and, if any such inquiry, proposal or offer is in writing, the Sellers or the Key Employees shall immediately deliver a copy thereof to the Buyer. For purposes hereof, "Acquisition Proposal" means any proposal for the acquisition of assets owned (of the Sellers or the stock of the Sellers, in whole or in part) , whether directly or indirectly, through purchase, merger, consolidation, or otherwise other than the Fabrication Business. A response by the Company Sellers to an unsolicited inquiry, proposal, or its Subsidiaries to offer from any Person in furtherance of an Acquisition Proposal person that constitutes or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate that they are bound by this Agreement and that they will be in communication with any discussions or negotiations with, or afford access to the business, properties, assets, books or records third party following a termination of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for this Agreement shall not constitute a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence breach of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.044.05.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mediq Inc)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither Neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and nor shall the Company and its Subsidiaries shall not authorize or any of its Subsidiaries authorize or permit any of its or their Officers, directors, employees, investment bankers, attorneys, accountants, consultants or other Representatives agents or advisors to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or any inquiry with respect thereto, (ii) enter into, continue into or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries 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 knowingly assist, participate in, facilitate or encourage any effort by any Third Party with respect that is seeking to any potential make, or has made, an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal, (iv) enter into any agreement in principle, memorandum of understanding, letter of intentintent or similar document or any contract, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of commitment contemplating or otherwise relating to an Acquisition Proposal Proposal, (an “Alternative Acquisition Agreement”)v) fail to make, withdraw, or modify in a manner adverse to Parent its recommendation to its stockholders referred to in Sections 2.02 and/or 7.02 hereof, or (ivvi) grant any waiver, amendment waiver or release under any standstill or confidentiality similar agreement concerning with respect to any class of equity securities of the Company or any of its Subsidiaries. Nothing contained in this Section 7.04 shall prohibit the Company (x) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the 1934 Act with regard to an Acquisition Proposal; Proposal (provided that notwithstanding the foregoing and the last sentence Board of this Section 6.04(a) Directors of the Company shall be permitted not withdraw or modify in an adverse manner its approval or recommendation referred to waive, amend, release in Sections 2.02 and/or 7.02 hereof except as set forth below) or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if (y) in the event that a Superior Proposal is made and the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action it would be inconsistent with otherwise constitute a breach of its fiduciary duties under Applicable Law. The duty to stockholders, from withdrawing or modifying its recommendation referred to in Sections 2.02 and/or 7.02 hereof prior to the purchase of Shares pursuant to the Offer, so long as the Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause continues to be terminated any and comply with all activities, discussions or negotiations, if any, existing as of the date other provisions of this Agreement and so long as all the conditions to the Company's rights to terminate this Agreement in accordance with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives Section 11.01(b)(iii) have been satisfied (including the expiration of the obligations in this 72-hour period described therein and the payment of all amounts required pursuant to Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.0412.04).
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by From and after the remainder date of this Section 6.04, from the date hereof Agreement until the Effective Time or, if earlier, earlier of the Closing or the termination of this Agreement in accordance with Article 10its terms, neither the Seller shall not, and shall cause each of its representatives, the Company nor any of its and the Company Subsidiaries nor any (and each of their respective officers or directors shall, and the Company and its Subsidiaries shall representatives) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate initiate, knowingly facilitate, knowingly support, seek, induce, entertain or knowingly encourage, or take any action to solicit, initiate, knowingly facilitate facilitate, knowingly support, seek, induce, entertain or knowingly encourage any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than the Buyer, (iii) furnish to any Person other than the Buyer any information that the Seller believes would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, any an Acquisition Proposal, including by way of furnishing (iv) accept any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to lead to an any Acquisition Proposal or (iiv) enter into, continue submit any Acquisition Proposal or otherwise participate in any discussions or negotiations with, or afford access matter related thereto to the businessvote of the equityholders of the Seller, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 LawSubsidiaries. The Company Seller shall, and shall cause each of its representatives and each of the Company and the Company Subsidiaries (and its and each of their respective Representatives representatives) to, immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of negotiations with any Persons conducted prior to or on the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by Until the remainder earlier of this Section 6.04, from the date hereof until the Effective Time or, if earlier, or the termination of this Agreement in accordance with Article 10its terms, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors Indigo shall, and the Company and its Subsidiaries each shall not authorize any cause each of its other Representatives not to, directly or indirectly, (i) solicit, initiate or encourage, or take any action to knowingly facilitate solicit, initiate or knowingly encourage any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent, (iii) furnish to any Person other than Parent any information that Indigo believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (iiiv) enter into, continue accept any Acquisition Proposal or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement arrangement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) understanding providing for a the consummation of any transaction that is the subject of an contemplated by any Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant otherwise relating to any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing . Each of Indigo and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of negotiations with any Persons conducted prior to or on the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal Proposal. Indigo shall, within two business (2) days after receipt, advise Parent of (A) any formal or that would reasonably be expected to lead informal inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives , (B) the material terms thereto and (C) the identity of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration or group making such inquiry, expression of acquiring the Company interest, proposal or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04offer.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the Effective Time or, if earliertermination hereof, the termination of this Agreement in accordance with Article 10Company will not, neither the Company nor any of and will cause its Subsidiaries nor any and will use reasonable best efforts to cause the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of their respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate solicit or knowingly encourage any inquiries or initiate the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations with, or afford access disclose any nonpublic information relating to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect Person who, to any potential Acquisition Proposalthe knowledge of the Company, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”)considering making, or (iv) grant any waiverhas made, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing Company may negotiate or otherwise engage in discussions with, and the last sentence of this Section 6.04(afurnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal if (w) the Company shall be permitted to waivehas complied with the terms of Section 6.03(b), amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if (x) the Board of Directors of the Company determines in good faithfaith that, after consultation with its outside legal counselbased on the terms and conditions contained in such Acquisition Proposal, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would could reasonably be expected to lead to an Acquisition constitute a Superior Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement , (y) prior to the date hereof in connection with its consideration of acquiring the Company providing any information or any of its Subsidiaries data to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any an Acquisition Proposal if requested Proposal, such Person executes a confidentiality agreement with terms substantially similar to do so by Parent, subject those contained in the Confidentiality Agreement (except as to the remaining standstill provisions, provided that if the Company so enters into any such confidentiality agreement without standstill provisions substantially similar to those in the Confidentiality Agreement, then Parent shall to the extent of this Section 6.04such difference be relieved of compliance with the Confidentiality Agreement's standstill obligations) and (z) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Promus Hotel Corp/De/)
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, Parent agrees that neither the Company it nor any of its Subsidiaries nor any of their respective the officers and directors of it or directors its Subsidiaries shall, and the Company that it shall cause its and its Subsidiaries shall not authorize Subsidiaries’ employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its other Subsidiaries for services provided in connection with the transactions contemplated by this Agreement whether as of the Original Merger Agreement Date or any time thereafter) (collectively, “Representatives”) not to, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any Acquisition Proposal. Parent further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (i) solicit, initiate or take engage in any action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutesnegotiations concerning, or would reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in knowingly encourage or facilitate any discussions effort or negotiations with, attempt to make or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential implement an Acquisition Proposal, (iiiii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement amend or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment waiver or release under any standstill or confidentiality similar agreement concerning with respect to any class of equity securities of Parent or any of its Subsidiaries (unless the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, 2005 between the Company and Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of the Delaware Law, (iv) amend or grant any waiver or release or approve any transaction or redeem any Parent Rights under the Parent Rights Agreement, (v) make any Adverse Parent Recommendation Change in connection with an Acquisition Proposal or (vi) enter into any definitive agreement with respect to an Acquisition Proposal; provided provided, however, that notwithstanding nothing contained in this Agreement shall prevent Parent or its Board of Directors from (1) complying with its disclosure obligations under Sections 14d-9 and 14e-2(a) of the foregoing and the last sentence of this Section 6.04(a) 1934 Act with regard to an Acquisition Proposal; provided, however, that if such disclosure constitutes an Adverse Parent Recommendation Change, the Company shall be permitted have the right to waiveterminate this Agreement as set forth in Section 10.01(c)(i) of this Agreement; and (2) at any time prior to, amendbut not after, release or fail the Parent Stockholder Approval is obtained, (A) providing information in response to enforce any provision of any confidentiality, “standstill” or similar obligation of any a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Parent receives from the Company Person so requesting such information, prior to the provision of any such information, an executed confidentiality agreement on terms no less favorable to Parent than those contained in the Confidentiality Agreement (provided that, such executed confidentiality agreement may contain less favorable standstill provisions as long as the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement are simultaneously waived); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Parent receives from such Person, prior thereto, an executed confidentiality agreement as described in the immediately preceding clause (A); or (C) recommending or making any Adverse Parent Recommendation Change in connection with such an unsolicited bona fide written Acquisition Proposal to the stockholders of Parent, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Parent determines in good faithfaith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties, (y) in each case referred to in clause (B) or (C) above, the Board of Directors of Parent determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal, that if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the failure proposal, the likelihood of obtaining financing, and the Person making the proposal, and if consummated, would result in a transaction more favorable to Parent’s stockholders from a financial point of view than the transactions contemplated by this Agreement taking into account any change proposed by the Company; and (z) in the case of clause (C), the Company shall have had written notice of Parent’s intention to take the action referred to in clause (C) at least 20 Business Days prior to the taking of such action would be inconsistent with its fiduciary duties under Applicable Law. The Company by Parent (which notice shall have attached the most current version of the agreement relating to the Acquisition Proposal in question and a summary of any other material terms relating thereto) and Parent shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, during such 20 Business Day period, negotiate in good faith with the Company with respect to any changes the Company may wish to make with respect to its proposal; provided, that any more favorable Acquisition Proposal referred to in clause (B) or (C) above must constitute an Acquisition Proposal that involves the acquisition, directly or indirectly, of 50% or more of the voting power of the Parent Stock or the assets of Parent and its Subsidiaries taken as a whole (any such more favorable Acquisition Proposal is referred to in this Agreement as a “Superior Proposal”). Parent agrees that it will immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement negotiations with any Third Party and its Representatives Person conducted prior to the Original Merger Agreement Date with respect to any Acquisition Proposal Proposal, including any discussions or that would reasonably be expected negotiations with respect to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives the possible sale of the obligations in this Section 6.04Flextech Group. The Company also Parent agrees that it will take the necessary steps to promptly request each Person inform the individuals or entities referred to in the first sentence of this Section 6.08 of the obligations undertaken in this Section 6.08. Parent agrees that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring it will notify the Company promptly, but in any event within 48 hours if any proposals or offers referred to in this Section 6.08 are received by, any such information is requested from, or any of its Subsidiaries such discussions or negotiations are sought to return be initiated or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of continued with, it or any of its SubsidiariesRepresentatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Company informed on a current basis, and, in any event, within 24 hours of any changes in the status, the terms and any other material details of any such proposals or offers, including whether any such proposal has been withdrawn or rejected. The Parent also agrees to provide any information to the Company that it is providing to another Person pursuant to this Section 6.08 at substantially the same time it provides it to such other Person. Parent agrees promptly, but in any event within five days after the Original Merger Agreement Date, to request the return or destruction of all information and materials provided prior to the Original Merger Agreement Date by it, its Subsidiaries Affiliates or their respective Representatives (and any information derived therefrom) with respect to the consideration or making of any Acquisition Proposal (including with respect to the possible sale of the Flextech Group) and Parent shall otherwise use commercially its reasonable best efforts to enforce any confidentiality agreements entered into agreement relating thereto. The parties agree that in determining what actions are necessary for the Board of Directors of Parent to comply with any Person in connection with any Acquisition Proposal if requested their respective fiduciary duties, the Board of Directors may consider the transactions contemplated by this Agreement to do so by Parent, subject be structured as they were under the Original Merger Agreement (except to the remaining provisions extent that the structure under this Agreement eliminates the need for consents of this Section 6.04Third Parties).
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by During the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlierInterim Period, the termination of this Agreement in accordance with Article 10Company shall not, neither the Company nor any and shall cause each of its Subsidiaries nor any Representatives and each of the other Acquired Companies (and each of their respective officers or directors shall, and the Company and its Subsidiaries shall Representatives) not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to knowingly facilitate solicit, initiate, facilitate, support, seek, induce, entertain or knowingly encourage any inquiries inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent, (iii) furnish to any Person other than Parent any information that the Company believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal, including by way of furnishing (v) submit any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access matter related thereto to the businessvote of the stockholders of the Company, properties, assets, books (vi) amend or records grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or the other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), Acquired Companies or (ivvii) grant resolve, propose or agree to do any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Lawforegoing. The Company shall, From and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of following the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring Agreement, the Company or further agrees not to, and to cause each other Acquired Company not to, release any of its Subsidiaries to return or destroy (as provided Persons described in the terms preceding sentence from any obligations under such non-disclosure or similar agreements without the prior written consent of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 1 contract
No Solicitation; Other Offers. (a) Except as provided by the remainder of this Section 6.04, from From the date hereof until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with Article 10pursuant to its terms, subject to Section 6.03(b), neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and nor shall the Company and its Subsidiaries shall not authorize or any of its other Subsidiaries authorize or knowingly permit any of its Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate encourage, directly or knowingly encourage any inquiries or A-33 indirectly, the making submission of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or afford access furnish to any Third Party any nonpublic information or data with respect to, or take any other action to knowingly facilitate the businessmaking of, propertiesany Acquisition Proposal, assets(iii) fail to make, books or records withdraw or modify in a manner adverse to Parent, the Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”) (it being understood, however, that for all purposes of this Agreement, the fact that the Company or any of its Subsidiaries to, or Representatives has taken any Third Party with respect to of the actions described in clause (ii) above as permitted by this Agreement shall not be deemed in and of itself a withdrawal or modification of the Board Recommendation or a recommendation of any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant enter into any waiveragreement with respect to any Acquisition Transaction, amendment or release under any standstill or except for a confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this as contemplated by Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines 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 Law6.03(b)(ii). The Company shall, and shall cause each its Subsidiaries and the Representatives of the Company and any of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
Appears in 1 contract
