No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below. (b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to: (i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals"); (ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal; (iii) agree to or endorse any Acquisition Proposal; (iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or (v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement. (c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof. (d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 4 contracts
Sources: Merger Agreement (Hk Merger Corp), Merger Agreement (Happy Kids Inc), Merger Agreement (Happy Kids Inc)
No Solicitation. (a) The parties acknowledge Each Shareholder agrees that it shall immediately cease, and agree that prior to October 15, 1999, the Company and shall cause its affiliates and its and its affiliates' respective directors, officers, employees, investment bankers, attorneys, accountants and other representatives (hereinafter referred to collectively as such "Shareholder's Representatives") to cease, any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal and use its reasonable best efforts to obtain the Company Representatives shall be permitted return from all such Persons or cause the destruction of all copies of confidential information provided to take such parties by such Shareholder or its representatives that are still in the actions proscribed in clauses (b)(i) through (v) below.
(b) possession of such Persons. From and after October 15, 1999 the date hereof until the any termination of this AgreementAgreement in accordance with its terms, the Company and its affiliates each Shareholder agrees that it shall not, and shall instruct the Company Representatives cause such Shareholder Representative not to:
, directly or indirectly (i) directly or indirectly solicit, initiate, initiate or knowingly encourage the initiation of (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, that has not been previously publicly disseminated) any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisitionany Takeover Proposal or (ii) participate in any discussions with any third party regarding, purchaseor furnish to any third party any non-public information with respect to, mergeror assist or facilitate, consolidationany Takeover Proposal. In addition, share exchangefrom and after the date hereof until any termination of this Agreement in accordance with its terms, recapitalizationeach Shareholder agrees that it shall promptly advise Purchaser, business combination orally and in writing, and in no event later than 48 hours after receipt, if any proposal, offer, inquiry or other similar transaction involving any material portion of the assets or any securities ofcontact is received by, any merger, consolidation or business combination withinformation is requested from, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with are sought to be initiated or continued with, such Shareholder or such Shareholder's Representatives in respect of any person Takeover Proposal, and shall, in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; providednotice to Purchaser, however, that prior to indicate the approval identity of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information toPerson making such proposal, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination inquiry or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions contact and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of any proposals or offers or the nature of any inquiries or contacts (and shall include with such proposal notice copies of any written materials received from or on behalf of such Person relating to such proposal, offer, inquiry or request), and thereafter shall keep Purchaser informed, on a reasonably current basis and in reasonable detail, of all material developments affecting the status and terms of any such proposals, offers, inquiries or requests (and the identity Shareholders shall provide Purchaser with copies of any additional written materials received that relate to such proposals, offers, inquiries or requests) and of the person making it. The Company also will promptly notify HK status of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does negotiations. As used in this paragraph, "affiliates" of the Shareholders shall not at such time constitute a Superior Proposal as defined in (b) above, include the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing nothing contained in this Section 5.9(d2(d) shall restrict any Shareholder's Representative who is intended to prevent, deter, or prohibit a director of the Company Board or the Special Committee from taking any action in such capacity that is permitted by Section 5.9(b) above and the taking terms of any such action shall not constitute a breach of this provisionthe Tender Agreement.
Appears in 3 contracts
Sources: Shareholder Agreements (Odd Job Stores Inc), Principal Shareholders' Agreement (Odd Job Stores Inc), Shareholder Agreement (Odd Job Stores Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15From the date hereof until the Merger Closing Date or, 1999if earlier, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this AgreementAgreement in accordance with Article XII, the Company and its affiliates SPAC shall not, and shall instruct direct any of the Company Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to:
(i) , directly or indirectly (a) solicit, initiate, or encourage pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(iib) enter into, maintain, participate in or continue any discussions or negotiations with any person in furtherance of such inquiries third-party with respect to, or furnish or make available, any information concerning SPAC to obtain any third party relating to an SPAC Acquisition Proposal;
, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (iii) agree to or endorse any Acquisition Proposal;
(ivc) enter into any binding understanding, binding arrangement, acquisition agreement, arrangement merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding requiring it to abandonor agreement in principle, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal an SPAC Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the extent thatdate hereof, as of October 15SPAC shall, 1999, the Company, and shall direct any of the Sponsors and its affiliates or any Company Representative is engaged in controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions or and negotiations with any person or entity Persons (other than HKthe Group Companies, the Shareholders and their Representatives) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionSPAC Acquisition Proposal.
Appears in 3 contracts
Sources: Merger Agreement (Blue World Holdings LTD), Merger Agreement (Blue World Acquisition Corp), Merger Agreement (Blue World Holdings LTD)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the not permit or cause any of its subsidiaries to, nor shall it authorize or permit any Company Representatives not to:
, directly or indirectly (except as otherwise contemplated by this Section 6.07), (i) directly or indirectly initiate, solicit, initiate, or encourage (including by way of furnishing nonpublic non-public information or assistance), induce or take any other action to facilitate, facilitate any inquiries or proposals from the making of any person that constituteproposal or offer with respect to an Acquisition Proposal, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintainengage in any negotiations concerning, or continue provide any confidential or other nonpublic information or data to, or have any discussions or negotiations with with, any person in furtherance of such inquiries or relating to obtain an Acquisition Proposal;
, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal, (iii) agree withdraw or modify in any manner adverse to Purchaser, the approval or endorse recommendation by the Board of the Offer, this Agreement, or the Merger, or (iv) cause the Company to enter into an Acquisition Agreement or approve or recommend any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval acceptance for payment of the Merger Shares pursuant to the Offer (or the approval by the shareholders stockholders, if a Cash Merger pursuant to Article II of this Agreement is utilized), the Company nothing in this Agreement shall prohibit may, and may authorize and permit the Company Board or the Special Committee from (A) furnishing information Representatives to, furnish or cause to be furnished confidential or other nonpublic information and engaging may participate in such negotiations and discussions or negotiations with, take any other action otherwise prohibited by this Section 6.07(a) with any person or entity that (unless such other action is subject to the restrictions of Section 6.07(b), in which case such other action shall only be permitted in accordance with such restrictions) that, after the date of this Agreement, makes an unsolicited written, a bona fide unsolicited proposal to acquire enter into a business combination with the Company and/or its Subsidiaries pursuant to an Acquisition Proposal that the Board in good faith reasonably determines (after having consulted with outside legal counsel and its independent financial advisor) is likely to result in a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the CompanySuperior Acquisition Proposal, but only if and to the extent that (i) the Company Board or the Special Committee determines in good faith, faith (after consulting having consulted with independent legal counsel (which may be the Company's regularly engaged outside legal counsel)) that such action is necessary in order for its directors to comply with their fiduciary duties under applicable law, that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that ii) prior to taking such action, the Company notifies HK (A) provides advance written notice to the Parent that it has received a request for nonpublic information (including a summary of its intentions the material terms of the Acquisition Proposal) and obtains that it intends to take such action and (B) receives from such person an executed confidentiality agreement from the appropriate parties substantially similar to in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement, (Biii) failing prior to make or withdrawing or modifying its recommendation referred furnishing any nonpublic information to in Section 5.12 hereof if any such person, the Company Board or furnishes such nonpublic information to the Special Committee, after consultation with independent legal counsel Parent (who may be to the Company's regularly engaged outside legal counselextent that such nonpublic information has not been previously furnished by the Company to the Parent), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (Civ) disclosing neither the Company nor any of its subsidiaries nor any of the Company Representatives shall have violated any of the provisions set forth in this Section 6.07. The Company shall keep the Purchaser promptly and reasonably informed with respect to the status of any such request and any modifications thereto. The Company shall immediately cease and cause to be terminated any existing activities, discussions, or negotiations with any parties conducted prior to the date of this Agreement with respect to any of the foregoing. If not previously requested, the Company also will promptly request each person that has executed prior to the date of this Agreement a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return or destroy all confidential or other nonpublic information furnished to such person by the Company or on the Company's shareholders ’s behalf prior to the date of this Agreement. Neither the Company nor any of its subsidiaries shall terminate, amend, modify, or waive any provision of any confidentiality or standstill agreement to which it is a position contemplated party and shall use its commercially reasonable efforts to enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including, but not limited to, by Rules obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. Notwithstanding the foregoing, nothing contained in this Section 6.07 shall prevent the Company from complying with Rule 14e-2 and Rule 14d-9 and 14e-2 promulgated under the Exchange Act with respect regard to an Acquisition Proposal or from making any disclosure to the Company’s stockholders if the Board determines in good faith (after having consulted with outside legal counsel) that such disclosure is required by law or necessary in order for the Company’s directors to comply with their fiduciary duties under applicable law.
(b) Except as expressly permitted by this Section 6.07(b), the Board (or any committee thereof) shall not approve any letter of intent, agreement in principle, acquisition agreement, or similar agreement relating to any tender offerAcquisition Proposal (an “Acquisition Agreement”). The Company may, or taking any however, terminate this Agreement pursuant to Section 8.01(e)(ii) if (i) the Board has received a Superior Acquisition Proposal, (ii) in light of such Superior Acquisition Proposal, the Board has determined in good faith (after having consulted with outside legal counsel) that it would be necessary for the Board to terminate this Agreement in order to comply with its fiduciary duties under applicable law, (iii) the Company has notified Parent in writing of the price and other legally required actionmaterial terms of the Superior Acquisition Proposal and the determinations described in clause (ii) above, or any action required (iv) at least three (3) business days following receipt by the rules Parent of the notice referred to in clause (iii) above, and taking into account any revised proposal made by Parent in writing since receipt of the notice referred to in clause (iii) above, such Superior Acquisition Proposal (as the same may have been modified or regulations amended, but provided that Parent shall have received the foregoing requisite notice of any self-regulating securities exchangesuch modification or amendment) remains a Superior Acquisition Proposal and the Board has again made the determinations referred to in clause (ii) above, market or other body (including, without limitation, v) during the making of public disclosure as may be necessary or advisable under applicable securities lawsthree (3) business day period referred to in the preceding clause (iv); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of and its rights under clause (A), (B) or (C) above advisors shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, have negotiated in good faith with Parent to make such adjustments in the terms and conditions of such proposal and this Agreement as would enable Parent to proceed with the identity transactions contemplated by this Agreement, (vi) the Company shall not be in material breach of the person making it. The Company also will promptly notify HK provisions of any change to Section 6.07(a) or modification of such Formal Acquisition Proposal and 6.07(b), (vii) the terms and conditions thereof.
(d) To the extent thatBoard concurrently or previously approves, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives toconcurrently or previously enters into, cease any and all activities, discussions or negotiations as a definitive Acquisition Agreement providing for the implementation of such date. Nothing in this Section 5.9(dSuperior Acquisition Proposal, and (viii) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.have paid
Appears in 3 contracts
Sources: Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Acquisition CORP)
No Solicitation. (a) The parties acknowledge During the period from the date of this Agreement and agree that prior to October 15, 1999, continuing until the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until earlier of the termination of this AgreementAgreement pursuant to its terms or the Closing, the Company and its affiliates shall not, and shall instruct the Company Representatives cause its Subsidiaries not to:
, and shall direct its stockholders, employees, agents, officers, directors, representatives and advisors (collectively, in each case in their capacity as such, “Representatives”) not to, directly or indirectly: (i) directly or indirectly solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action respond to facilitate, any inquiries or proposals from any person that constituteby, or may provide any information to, any Person (other than Parent and its agents, representatives, advisors) concerning any merger, sale of ownership interests and/or assets of the Company, recapitalization or similar transaction (each, a “Company Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination to a Company Business Combination; or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to commence, continue or endorse renew any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the due diligence investigation regarding a Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itBusiness Combination. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) aboveIn addition, the Company shall, and shall cause its affiliates Subsidiaries and the Company Stockholders to, and shall cause their respective Representatives to, immediately cease any and all activities, existing discussions or negotiations as with any Person with respect to any Company Business Combination.
(b) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, Parent and Merger Sub shall not, and shall direct their respective Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company, the Company Stockholders and their respective Representatives) concerning any merger, purchase of ownership interests or assets of Parent, recapitalization or similar business combination transaction (each, a “Parent Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a Parent Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a Parent Business Combination. Parent and Merger Sub shall, and shall cause their respective Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any Parent Business Combination.
(c) Each Party shall promptly (and in no event later than 24 hours after becoming aware of such date. Nothing inquiry, proposal, offer or submission) notify the other Parties (and in this Section 5.9(dthe case of Parent’s receipt of a Parent Business Combination proposal, Parent shall also provide notice to the Company) is intended if it or, to preventits Knowledge, deterany of its or its Representatives receives any inquiry, proposal, offer or prohibit submission with respect to a Company Business Combination or Parent Business Combination, as applicable (including the Company Board identity of the Person making such inquiry or submitting such proposal, offer or submission), after the Special Committee from taking any action permitted by Section 5.9(b) above execution and the taking of any such action shall not constitute a breach delivery of this provisionAgreement. If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to a Company Business Combination or Parent Business Combination, as applicable, such Party shall provide the other Parties with a copy of such inquiry, proposal, offer or submission (and in the case of Parent’s receipt, Parent shall also provide copies to the Company).
Appears in 3 contracts
Sources: Merger Agreement (CM Life Sciences III Inc.), Merger Agreement (CM Life Sciences II Inc.), Merger Agreement (CM Life Sciences, Inc.)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates Parent and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination agree that neither of this Agreement, the Company and its affiliates shall notthem nor any of their officers or directors shall, and that they shall instruct the Company Representatives use commercially reasonable efforts to cause their employees, agents and representatives not to (and shall not authorize any of them to:
), directly or indirectly: (i) directly or indirectly solicit, initiateinitiate or encourage any inquiries or proposals regarding any merger, consolidation, sale of substantial assets, sale of shares of capital stock, or encourage similar transactions involving Parent, on the one hand, or the Company, on the other hand, or any of their subsidiaries with a third party (including by way any of furnishing the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”); (ii) furnish to any Person any nonpublic information or assistance), or take any other action to facilitate, facilitate any inquiries or proposals from the making of any person proposal that constitute, constitutes or may could reasonably be expected to lead to, an acquisitionany Acquisition Proposal with respect to Parent, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of on the assets or any securities of, any merger, consolidation or business combination withone hand, or any public announcement of a proposalthe Company, plan, on the other hand,; (iii) participate or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue engage in discussions or negotiations with any person in furtherance of such inquiries or Person with respect to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
Proposal with respect to Parent, on the one hand, or the Company, on the other hand, or the making of any proposal that constitutes or could reasonably be expected to lead to any Acquisition Proposal with respect to Parent, on the one hand, or the Company, on the other hand; (iv) approve, endorse or recommend any Acquisition Proposal with respect to Parent, on the one hand, or the Company, on the other hand; or (v) enter into any agreementletter of intent, arrangement agreement in principal or understanding requiring it similar agreement contemplating or otherwise relating to abandonany Acquisition Proposal with respect to Parent, terminate on the one hand, or fail to consummate the Merger or any Company, on the other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionhand; provided, however, that prior to in the approval event that Parent receives a bona fide, unsolicited Acquisition Proposal in writing that was not received as a result of a breach of this Section 5.3 by Parent or any of its of its officers, directors, employees, agents or representatives, the Merger foregoing shall not prevent the board of directors of Parent from taking such actions that are required by their fiduciary duties under applicable law.
(b) Parent agrees that, during the shareholders period between the signing and closing or termination of the Company nothing in this Agreement shall prohibit the Company Board Agreement, neither it nor any of its officers or the Special Committee from (A) furnishing information todirectors shall, and engaging that it shall use commercially reasonable efforts to cause its employees, agents and representatives not to (and shall not authorize any of them to), directly or indirectly: (i) solicit, initiate or encourage any inquiries or proposals regarding the acquisition or exclusive licensing by Parent or its Affiliates of another entity or assets in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a field of cell-free DNA by merger, consolidation, share exchangepurchase or exclusive licensing of substantial assets, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale purchase of shares of capital stock (a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel “cfDNA Acquisition”); (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information ii) participate or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person Person with respect to a cfDNA Acquisition, or entity the making of any proposal that constitutes or could reasonably be expected to lead to a cfDNA Acquisition; or (iii) enter into any letter of intent, agreement in principal or similar agreement contemplating or otherwise relating to a cfDNA Acquisition.
(c) Each party will promptly notify the other than HKafter receipt of any Acquisition Proposal or any notice that any Person is considering making an Acquisition Proposal or any request for nonpublic information relating to such party or any of its subsidiaries or for access to the properties, books or records of such party or any of its subsidiaries by any Person that has advised such party that it may be considering making, or that has made, an Acquisition Proposal, and will keep the other party reasonably informed of the status and details of any such Acquisition Proposal notice (including the identity of the Person making the Acquisition Proposal, price and material terms), request or any correspondence or communications related thereto and shall provide the other party with a true and complete copy of such Acquisition Proposal notice or request or correspondence or communications related thereto, if it is in writing, or a written summary thereof, if it is not in writing.
(d) Each party shall immediately cease any existing discussions or negotiations with any Person conducted heretofore with respect to any proposal of the foregoing.
(e) Each party shall ensure that does not at such time constitute a Superior Proposal as defined in (b) aboveits officers, directors and employees and any investment banker or other advisor or representative retained by it are aware of the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing provisions set forth in this Section 5.9(d) is intended 5.3 and shall instruct its officers, directors and employees to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted abide by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionprovisions.
Appears in 3 contracts
Sources: Merger Agreement (CareDx, Inc.), Merger Agreement (CareDx, Inc.), Merger Agreement (CareDx, Inc.)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15Except as expressly permitted by this Section 5.02, 1999, from the Company and its affiliates and date of this Agreement until the Company Representatives shall be permitted to take earlier of the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Effective Time or the termination of this AgreementAgreement in accordance with its terms, the Company and its affiliates shall not, and shall instruct the Company Representatives cause its Subsidiaries and its and their directors and officers not to:
, and shall use its reasonable best efforts to cause its and its Subsidiaries’ employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives (collectively, with such directors and officers referred to above, “Representatives”) not to, directly or indirectly (i) directly or indirectly solicit, initiateseek, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing nonpublic information or assistance)any non-public information) any inquiries regarding, or take any other action to facilitate, any inquiries or proposals from any person that constitutethe making of, or may any submission or announcement of a proposal or offer that constitutes, or would reasonably be expected to lead to, an acquisitionany Company Acquisition Proposal, purchase(ii) engage in, mergercontinue or otherwise participate in any discussions or negotiations regarding, consolidationor furnish to any other Person any non-public information in connection with or for the purpose of encouraging or facilitating, share exchangeany Company Acquisition Proposal or any inquiry or proposal that could reasonably be expected to lead to a Company Acquisition Proposal, recapitalization(iii) approve, business combination endorse, recommend, submit to stockholders or declare advisable any Company Acquisition Proposal, (iv) enter into any letter of intent, term sheet, memorandum of understanding, acquisition agreement, merger agreement, option agreement or other similar transaction involving agreement (other than a Company Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”) relating to any material portion Company Acquisition Proposal or (v) release or terminate or permit the release of the assets any Person from, or any securities termination of, or waive or modify or permit the waiver or modification of any merger, consolidation or business combination withprovision of, or fail to enforce or cause not to be enforced, any public announcement of a proposalconfidentiality, plan, standstill or intention similar agreement to do any of the foregoing by, which the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter intois a party except, maintain, or continue discussions or negotiations with any person in furtherance the case of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
clause (v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board failure to so release, terminate, waive, modify or fail to enforce would be inconsistent with the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK duties of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itApplicable Law. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates Subsidiaries and the Company Representatives its and their directors and officers to, and shall use its reasonable best efforts to cause its and their respective Representatives (other than its and their directors and officers) to, immediately cease and cause to be terminated all discussions and negotiations with any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(dPerson (other than Parent) is intended that may be ongoing with respect to prevent, deter, or prohibit the any Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionAcquisition Proposal.
Appears in 3 contracts
Sources: Merger Agreement (CMC Materials, Inc.), Merger Agreement (CMC Materials, Inc.), Merger Agreement (Entegris Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 the date hereof until the earlier of the Effective Time or the termination of this AgreementAgreement pursuant to Article 7, the Company Company, its subsidiaries and its their affiliates shall not, and shall instruct cause the Company Representatives not to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, initiate or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries inquiry in connection with or proposals the making of any proposal from any person Person that constitute, or may reasonably be expected to lead toconstitutes, an acquisitionAcquisition Proposal, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, explore, maintain, participate in or continue discussions any discussion or negotiations negotiation with any person in furtherance Person (other than Merger Sub, Parent or any of such inquiries or to obtain the Purchaser Representatives, as applicable) regarding an Acquisition Proposal;
, or furnish to any Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) any information or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) to make or effect an Acquisition Proposal, or (iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandonwith respect to, terminate or fail to consummate the Merger or otherwise endorse, any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionAcquisition Proposal; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing contained in this Agreement Section 5.11 shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and or engaging in discussions or negotiations withwith (including making counter proposals to), any person or entity Person that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that Acquisition Proposal if (A) the Company Board or the Special Committee determines in good faith, faith after consulting consultation with independent legal counsel (which may be the Company's regularly engaged its outside legal counsel), that it has failing to take such action could be inconsistent with the Company Board’s or the Special Committee’s fiduciary duties to the Company’s stockholders under applicable Law, (B) the Acquisition Proposal constitutes a fiduciary obligation Superior Proposal, (C) prior to furnish furnishing such information to, or engage engaging in such discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement with such person or entity terms no less favorable to the Company, in all material respects, than those contained in the Confidentiality Agreement, and (any such proposal meeting such criteria, a "Superior Proposal"), provided, that D) the Company notifies Parent not less than 2 days prior to taking such actionaction (which notice shall identify the person making the proposal, and describe the terms thereof). The issuance of the press release described in Section 5.06 above by the Company notifies HK shall not be deemed a breach of its intentions this Section 5.11.
(b) From and obtains an executed confidentiality agreement from after the appropriate parties substantially similar date hereof until the earlier of the consummation of the Offer by Merger Sub or the termination of this Agreement pursuant to the Confidentiality AgreementArticle 7, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation Committee is entitled to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offerfurnish information to, or taking engage in discussions or negotiations with, any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities lawsPerson pursuant to Section 5.11(a); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or Board may terminate this Agreement in respect of any Acquisition Proposal pursuant to the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute termination provisions set forth in Article 7 hereof if such Acquisition Proposal constitutes a breach by the Company of this AgreementSuperior Proposal.
(c) The Company will promptly (but in any event within 24 hours) notify HK Parent of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To Nothing contained in this Agreement shall prevent the extent thatCompany Board from taking, as and disclosing to the Company stockholders, a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, however, that none of October 15, 1999, the Company, any of its affiliates the Company Board, the Special Committee or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, except as permitted by Section 5.11(b) propose to approve or recommend any Acquisition Proposal.
(e) The Company and each of its subsidiaries shall immediately cease and cause its affiliates and the Company Representatives to, to cease any and all existing activities, discussions or negotiations with any parties (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) conducted heretofore with respect to any Acquisition Proposal.
(f) For purposes of such date. Nothing in this Section 5.9(d) is intended to preventAgreement, deter“Acquisition Proposal” shall mean any offer or proposal for, or prohibit any indication of interest in, (i) any direct or indirect acquisition or purchase of 10% or more of the total assets of the Company Board and its subsidiaries, in a single transaction or series of related transactions, other than in the Special Committee from taking ordinary course of the Company’s business, (ii) any action permitted by Section 5.9(b) above and the taking direct or indirect acquisition or purchase of 10% or more of any such action shall not constitute class of equity securities of the Company or any of its subsidiaries, in a breach single transaction or series of this provisionrelated transactions, (iii) any tender offer or exchange offer (including a self-tender offer) that if consummated would result in any person beneficially owning 10% or more of any class of equity securities of the Company or any of its subsidiaries, (iv) any merger, consolidation, share exchange, business combination, recapitalization, reclassification or other similar transaction involving the Company or any of its subsidiaries or (v) any public announcement of an agreement, proposal or plan to do any of the foregoing, other than the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Infousa Inc), Merger Agreement (Onesource Information Services Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999From the date hereof until the Expiration Date, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall notStockholder shall, and shall instruct its Representatives with which the Company Stockholder has had contact regarding the Offer to, cease any direct or indirect solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and the Stockholder shall not and shall direct such Representatives not to:
to (i) continue any direct or indirect solicitation, knowing encouragement, knowing facilitation (including by way of providing non-public information), discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and (ii) directly or indirectly indirectly, (A) solicit, initiate, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing nonpublic information or assistance)non-public information) any inquiries regarding, or take the making of any other action to facilitate, any inquiries proposal or proposals from any person offer that constituteconstitutes, or may could reasonably be expected to lead to, an acquisitionAcquisition Proposal, purchase(B) engage in, merger, consolidation, share exchange, recapitalization, business combination continue or other similar transaction involving otherwise participate in any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with any person in furtherance or for the purpose of such inquiries knowingly encouraging or to obtain facilitating, an Acquisition Proposal;
Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal or (iii) agree to or endorse any Acquisition Proposal;
(ivC) enter into any letter of intent, acquisition agreement, arrangement agreement in principle or understanding requiring it similar agreement with respect to abandon, terminate or fail to consummate the Merger an Acquisition Proposal or any other transaction contemplated by this Agreementproposal or offer that could reasonably be expected to lead to an Acquisition Proposal; in each case, or
(v) authorize or permit except to the extent that at such time the Company Representatives is permitted to take any such action; provided, however, that prior action pursuant to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Tender and Support Agreement (Translate Bio, Inc.), Tender and Support Agreement (Translate Bio, Inc.)
No Solicitation. (a) The parties acknowledge Except as set forth below, from and agree that after the date hereof and prior to October 15, 1999the Effective Time, the Company and its affiliates and shall not, directly or indirectly, through any Subsidiary or Affiliate of the Company, or through any officer, director, employee, investment banker, agent or other representative of the Company Representatives shall or any Subsidiary or Affiliate of the Company, (i) encourage, invite, initiate or solicit any inquiries relating to or the submission or making of a proposal by any Person with respect to a Third-Party Acquisition (as defined below) or (ii) participate in, or encourage, invite, initiate or solicit, negotiations or discussions with, or furnish or cause to be permitted furnished any information to, any Person relating to take a Third-Party Acquisition. Upon the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination execution of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
immediately (i) directly or indirectly solicit, initiatecease, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action cause to facilitatebe ceased, any inquiries discussions or proposals negotiations with any Person, entity or group in connection with any proposed or potential Third-Party Acquisition and shall seek to have returned to the Company any confidential information provided in any such discussions or negotiations and (ii) take all actions necessary to rescind the Company's stock repurchase program authorized by the Board on August 9, 2000. Notwithstanding the foregoing, prior to the Stockholders Meeting, if the Company, the Board or the Independent Committee, without being in violation of the terms of this Section 5.2, receives an unsolicited bona fide written proposal from any person that constitute, Person or may group with respect to a Third-Party Acquisition which could reasonably be expected to lead toresult in a Superior Proposal (as defined below), then the Company may, directly or indirectly, furnish information and access to such Person or group pursuant to an acquisitionappropriate confidentiality agreement, purchaseand may participate in discussions and negotiations with, mergersuch Person or group; provided, consolidationhowever, share exchangethat the terms of such confidentiality agreement shall have terms that are not less restrictive than the terms set forth in the confidentiality agreement between the Company and Parent, recapitalizationdated as of July 31, business combination 2000 (the "Confidentiality Agreement").
(b) The Company shall within twenty-four (24) hours notify Parent in writing upon receipt of any proposal, written or other similar transaction involving any material portion of the assets oral, relating to a Third- Party Acquisition or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention request for nonpublic information relating to do any of the foregoing by, the Company or any of its Subsidiaries in connection with any pending, proposed or contemplated Third-Party Acquisition or for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Board or the Independent Committee that it is considering making, or has made, a proposal relating to a Third- Party Acquisition. Such notice shall identify the Person submitting the proposal, attach a copy of any written correspondence or other written materials relating to such proposal, summarize any significant terms of such proposal not reflected in any such attached materials, state whether the Company is providing or intends to provide the Person or group making such proposal with access to information concerning the Company or any of its Subsidiaries, as provided in this Section 5.2 and, if it proposes to provide such access to information, state that such proposal could reasonably be expected to result in a Superior Proposal and the basis for such conclusion. The Company also shall promptly notify Parent of any significant development relating to any inquiries, discussions, negotiations, proposals or requests for information concerning any Third-Party Acquisition. The Company shall keep Parent informed of the status of any such negotiations and shall further update, to the extent of any significant developments, the information required to be provided in each notice upon the request of Parent.
(c) Except as provided in subparagraph (d) below, neither the Board nor the Independent Committee shall (i) withdraw or modify, or propose to withdraw or modify, or refuse or fail at Parent's request to reaffirm, (A) the approval by the Board of this Agreement or the Merger, (B) the favorable recommendation of the Independent Committee and the Board with respect thereto, or (C) the Board's recommendation to stockholders of the Company that they vote their shares of Company Common Stock in favor of adoption of this Agreement, and the Board's direction that this Agreement be submitted to stockholders for such transactions being referred to herein as "Acquisition Proposals");
adoption; (ii) enter into, maintainapprove or recommend, or continue discussions propose publicly to approve or negotiations with recommend, any person in furtherance of such inquiries Third- Party Acquisition; or to obtain an Acquisition Proposal;
(iii) agree cause the Company to or endorse any Acquisition Proposal;
(iv) enter into any agreementagreement in principle, arrangement letter of intent, contract, agreement (whether written or oral) or memorandum of understanding requiring it (each, a "Company Acquisition Agreement") related to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, orThird-Party Acquisition.
(vd) authorize or permit Notwithstanding the Company Representatives to take any such action; providedforegoing, however, that prior to in the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent event that the Company Board or the Special Independent Committee determines in good faith, after consulting with independent receipt of advice of its outside legal counsel (which may be counsel, that failure to take such action would constitute a breach of the Board's fiduciary duties to the Company's regularly engaged outside legal counsel)stockholders under applicable law, the Independent Committee (and the Board acting on the recommendation of the Independent Committee) may (i) withdraw or modify its approval or recommendation of this Agreement and the Merger and disclose such withdrawal or modification to the Company's stockholders; and, (ii) solely in relation to a Third- Party Acquisition that it has constitutes a fiduciary obligation to furnish Superior Proposal, provided the Board, the Independent Committee and the Company have not violated the terms of this Section 5.2, (A) recommend such information or engage Superior Proposal, and/or (B) following the Stockholders Meeting, if the Company Stockholder Approval shall not have been obtained, terminate this Agreement in such discussions or negotiations accordance with Section 7.1(d)(iii) hereof and, contemporaneously with such person or entity (any termination, cause the Company to enter into a Company Acquisition Agreement with respect to such proposal meeting such criteria, a "Superior Proposal"), provided, however, that (x) prior to taking such actionany of the foregoing actions, the Company notifies HK of its intentions shall have paid Parent by wire transfer the amount payable pursuant to Section 7.3 and obtains an executed confidentiality agreement from (y) prior to taking the appropriate parties substantially similar to the Confidentiality Agreement, action described in clause (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if above, the Company Board or the Special Committee, after consultation with independent legal counsel Independent Committee shall have (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is 1) given two daysParent at least three Business Days' prior written notice that the Company intends to terminate this Agreement and provided Parent with a reasonable opportunity to respond to any such Superior Proposal (which response could include a proposal to revise the terms of its intentions to do so, the Transactions) and (C2) disclosing fully considered any such response by Parent and concluded that, notwithstanding such response, such proposal continues to be a Superior Proposal in relation to the CompanyTransactions, as the terms of the Transactions may be proposed to be revised by Parent's shareholders response. Notwithstanding the foregoing, the obligation of the Company to duly call, give notice of, convene and hold the Stockholders Meeting in accordance with Section 2.3 hereof shall not be affected by the commencement, proposal, public disclosure or communication to the Company of a position contemplated Third-Party Acquisition or a Superior Proposal or by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or of any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's Board or the Special Committee's exercise of its rights under clause (A), (B) Independent Committee in accordance with this Section 5.2. No action taken by the Board or (C) above the Independent Committee in accordance with this Section 5.2 shall not constitute a breach by the Company of any other section of this Agreement.
(ce) The Company will promptly notify HK As used in this Agreement, the term "Third-Party Acquisition" shall mean any of the receipt following events: (i) the acquisition of the Company by merger, purchase of stock or assets, joint venture or otherwise by, or a "merger of equals" with, any Person (which includes a "person," as such term is defined in Section 13(d)(3) of the Exchange Act) other than a member of the Acquisition Group (a "Third Party"); (ii) the acquisition by a Third Party of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity material portion (which shall include twenty percent (20%) or more) of the person making it. The assets of the Company also will promptly notify HK and its Subsidiaries, taken as a whole; (iii) the acquisition by a Third Party of any change to twenty percent (20%) or modification more of such Formal Acquisition Proposal and the terms and conditions thereof.
outstanding shares of Company Common Stock; (div) To the extent that, as adoption by the Company of October 15, 1999, a plan of liquidation or the Company, declaration or payment of an extraordinary dividend; or (v) the repurchase by the Company or any of its affiliates or any Subsidiaries of more than twenty percent (20%) of the outstanding shares of Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionCommon Stock.
Appears in 2 contracts
Sources: Merger Agreement (Cendant Corp), Agreement and Plan of Merger (Cendant Corp)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates Stockholder shall not, and shall instruct cause its affiliates and officers, directors, employees, partners, investment bankers, attorneys, accountants and other agents and representatives of Stockholder and such affiliates (such affiliates, officers, directors, employees, partners investment bankers, attorneys, accountants, agents and representatives of any Person are hereinafter collectively referred to as the Company Representatives "Representatives" of such Person) not to:
, directly or indirectly (i) directly or indirectly solicit, initiate, solicit or encourage (including by way of furnishing nonpublic information or assistance)encourage, or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of facilitate the assets or any securities making of, any merger, consolidation offer or business combination with, proposal which constitutes or is reasonably likely to lead to any public announcement Takeover Proposal (as defined in the Merger Agreement) of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
affiliate or any inquiry with respect thereto, or (ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance the event of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate unsolicited Takeover Proposal for the Merger Company or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets affiliate of the Company, but only engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent, any of its affiliates or representatives) relating to any Takeover Proposal. Stockholder shall notify Parent and Sub orally and in writing of any such offers, proposals, or inquiries relating to the extent that purchase or acquisition by any Person of the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body Shares (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal thereof and the identity of the person Person making it), within 24 hours of the receipt thereof. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company Stockholder shall, and shall cause its affiliates and the Company Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any parties conducted heretofore with respect to any Takeover Proposal relating to the Company, other than discussions or negotiations as of such datewith Parent and its affiliates. Nothing Notwithstanding the restrictions set forth in this Section 5.9(d) 5(f), any Person who is intended to prevent, deter, an officer or prohibit director of the Company Board may exercise his fiduciary duties in his capacity as a director or officer of the Special Committee from taking any action permitted by Section 5.9(b) above and Company consistent with the taking terms of any such action shall not constitute a breach of this provisionthe Merger Agreement.
Appears in 2 contracts
Sources: Stockholder Agreement (Zell Chilmark Fund L P), Stockholder Agreement (Rite Aid Corp)
No Solicitation. (a) The parties acknowledge and agree Seller agrees that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall it will not, and will cause its controlled Affiliates to not, from the date of this Agreement and for a period of two years following the Closing Date (the “Non-Solicitation Period”) personally or through others, directly or indirectly, encourage, induce, attempt to induce, solicit or attempt to solicit (on their own behalf or on behalf of any other Person) any Transferred Employee or any employee of Buyer or any Subsidiary of Buyer with whom Seller or its Representatives has had significant contact in connection with or as a result of the transactions contemplated by this Agreement or the Ancillary Agreements (collectively, the “Restricted Employees”) to leave his or her employment with Buyer or its Affiliates; provided, that no member of the Seller Group shall instruct the Company Representatives not to:
be restricted from (i) directly making a general solicitation that is not targeted specifically to any Restricted Employee or indirectly solicitgroup of Restricted Employees, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, responding to any Restricted Employee who contacts it at his or continue discussions her own initiative without the prior direct or negotiations with indirect encouragement or solicitation by or on behalf of any person in furtherance member of such inquiries the Seller Group (other than as permitted by clause (i) or to obtain an Acquisition Proposal;
(iii) agree to of this proviso), (iii) hiring persons (x) who are referred by search firms or endorse employment agencies or similar entities so long as such entities have not been instructed by or on behalf of any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval member of the Merger by the shareholders Seller Group to solicit any Restricted Employee or (y) to whom any member of the Company nothing in Seller Group may respond pursuant to clause (i) or (ii). Any violation of this Agreement Section 5.9(a) by any member of the Seller Group shall prohibit be deemed a violation of Seller. The parties agree that if an employee of the Company Board Seller Group solicits a Restricted Employee without permission or authority from an executive officer of the Special Committee from (ASeller Group or member of the human resources department of the Seller Group, then such activity shall not be a violation of this Section 5.9(a) furnishing information toso long as the Seller Group terminates such solicitation activity promptly, and engaging in discussions no event more than 24 hours, after an executive officer or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion member of the assets human resources group of the Company, but only Seller Group becomes aware of such activity. Buyer agrees to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which use commercially reasonable efforts to give notice to Seller promptly if it becomes aware of any solicitation activity it believes may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"breach this Section 5.9(a), provided, that failure to give such notice shall not relieve any member of the Seller Group of any of its obligations under this Section 5.9(a). The restrictions set forth in this Section 5.9(a) shall not apply to any third Person or any of such third Person’s current or future Affiliates that acquires, via a merger or business combination, any member of the Seller Group; provided, for the avoidance of doubt, such restrictions shall continue to apply to any acquired member of the Seller Group (or, if applicable, the surviving entity of a merger or business combination involving any member of the Seller Group) and shall apply in the event that a member of the Seller Group requested, directed or influenced the solicitation or it was made by the third Person on behalf of or at the direction of a member of the Seller Group. In the event that this Agreement is terminated in accordance with its terms prior to taking such actionthe Closing, this Section 5.9(a) shall be binding upon Seller only for the Company notifies HK of its intentions and obtains an executed confidentiality agreement period from the appropriate parties substantially similar to date hereof until the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if first anniversary of the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice date of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company termination of this Agreement.
(cb) The Company Buyer agrees that it will promptly notify HK not, and will cause its controlled Affiliates to not, from the date of this Agreement until the end of the receipt Non-Solicitation Period personally or through others, encourage, induce, attempt to induce, solicit or attempt to solicit (on their own behalf or on behalf of any Formal Acquisition Proposal, the terms and conditions other Person) any employee of such proposal and the identity any member of the person making it. The Company also will promptly notify HK Seller Group (other than the Business Employees) (a “Seller Employee”) to leave his or her employment with such member of any change the Seller Group or, during the term of the Austin Office Lease, (to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent thatsuch covenant by Buyer is permitted by applicable law) hire any Seller Employee whose principal place of work is the facility covered by the Austin Office Lease for employment by Buyer or its Affiliates at a work location in Texas; provided, that none of Buyer or its Affiliates shall be restricted from (i) making a general solicitation that is not targeted specifically to any Seller Employee or group of Seller Employees, (ii) responding to any Seller Employee who contacts it at his or her own initiative without the prior direct or indirect encouragement or solicitation by Buyer or its Affiliates (other than as permitted by clause (i) or (iii) of October 15this proviso), 1999, the Company, (iii) hiring persons (x) who are referred by search firms or employment agencies or similar entities so long as such entities have not been instructed by Buyer or any of its affiliates Affiliates to solicit any Seller Employee or (y) to whom Buyer or its Affiliates may respond pursuant to clause (i) or (ii). Any violation of this Section 5.9(b) by any Company Representative is engaged in discussions Affiliate of Buyer shall be deemed a violation of Buyer. The parties agree that if an employee of Buyer or negotiations with any person its Affiliates solicits a Seller Employee without permission or entity (other than HKauthority from an executive officer of Buyer or member of the human resources department of Buyer, then such activity shall not be a violation of this Section 5.9(b) with respect to any proposal that does not at so long as Buyer terminates such time constitute a Superior Proposal as defined in (b) above, the Company shallsolicitation activity promptly, and shall cause its affiliates and in no event more than 24 hours, after an executive officer or member of the Company Representatives to, cease any and all activities, discussions or negotiations as human resources group of Buyer becomes aware of such dateactivity. Nothing Seller agrees to use commercially reasonable efforts to give notice to Buyer promptly if it becomes aware of any solicitation activity it believes may breach this Section 5.9(b), provided, that failure to give such notice shall not relieve any Buyer Party of any of its obligations under this Section 5.9(b). The restrictions set forth in this Section 5.9(d5.9(b) shall not apply to any third Person or any of such third Person’s current or future Affiliates that acquires, via a merger or business combination, any member of the Buyer Group; provided, for the avoidance of doubt, such restrictions shall continue to apply to any acquired member of the Buyer Group (or, if applicable, the surviving entity of a merger or business combination involving any member of the Buyer Group) and shall apply in the event that a member of the Buyer Group requested, directed or influenced the solicitation or it was made by the third Person on behalf of or at the direction of a member of the Buyer Group. In the event that this Agreement is intended terminated in accordance with its terms prior to preventthe Closing, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by this Section 5.9(b) above and shall be binding upon Buyer only for the taking period from the date hereof until the first anniversary of any such action shall not constitute a breach the date of termination of this provisionAgreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Silicon Laboratories Inc.), Asset Purchase Agreement (Skyworks Solutions, Inc.)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, Neither the Company and its affiliates and nor any of the Company Representatives Subsidiar ies shall, nor shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15it or any of Company Subsidiaries authorize or permit any of their respective directors, 1999 until the termination of this Agreementofficers, the Company and its affiliates shall notemployees, and shall instruct the Company Representatives not investment bankers, attorneys or other agents or representatives, directly or indirectly to:
, (i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), ) or take any other action to facilitate, any inquiries inquiry or proposals from the making of any person that constituteproposal which constitutes, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any acquisition or other similar transaction involving any material portion purchase of the a substantial amount of assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing byequity interest in, the Company or any of its Subsidiaries or any tender offer (such including a self tender offer) or exchange offer, merger, consolidation, business combination, sale of substantially all assets, sale of securities, recap italization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries (other than the transactions being referred contemplated by this Agreement) or any other material corporate transaction the consummation of which would or could reasonably be expected to herein as impede, interfere with, prevent or materially delay the Merger (collectively, "Acquisition ProposalsTRANSACTION PROPOSALS");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
Transac tion Proposal or (ivii) propose, enter into or participate in any agreementdiscussions or negotiations regarding any of the foregoing, arrangement or understanding requiring it furnish to abandonany other Person any information with respect to its business, terminate properties or fail to consummate the Merger assets or any of the foregoing, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other transaction contemplated by this Agreement, or
(v) authorize Person to do or permit seek any of the Company Representatives to take any such actionforego ing; provided, however, that the foregoing clauses (i) and (ii) shall not prohibit the Company from, prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from Stockholders Meeting (A) furnishing information topursuant to an appropriate confidentiality letter concerning the Company and its businesses, and properties or assets to a third party which has made an unsolicited Qualified Transaction Proposal (as defined below), (B) engaging in discussions or negotiations with, any person or entity that makes with such a third party which has made an unsolicited writtenQualified Transac tion Proposal or (C) following receipt of an unsolicited Qualified Transaction Proposal, bona fide proposal taking and disclosing to acquire its shareholders a position with respect to such Qualified Transaction Proposal, but in each case referred to in the foregoing clauses (A) through (C) only after the Board of Directors of the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines concludes in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has following receipt of a fiduciary obligation written opinion addressed to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.outside
Appears in 2 contracts
Sources: Merger Agreement (Metromedia International Group Inc), Merger Agreement (Metromedia International Group Inc)
No Solicitation. (a) The parties acknowledge Unless and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this AgreementAgreement pursuant to the provisions of Section 8.1, neither the Company and its affiliates shall not, and shall instruct nor the Members will (nor will the Company Representatives not or the Members permit any of the Company's officers, directors, agents, representatives or affiliates to:
(i) directly or indirectly indirectly, take any of the following actions with any party other than Parent and its designees: (a) solicit, initiateencourage, initiate or encourage (including by way of furnishing nonpublic information conduct discussions with or assistance)engage in negotiations with any person, or take any other action intended or designed to facilitatefacilitate the efforts of any person, relating to the possible acquisition of the Company (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any inquiries portion of its capital stock or proposals from assets (each of the foregoing, an "Acquisition"), (b) provide any information to, or otherwise cooperate with, facilitate or encourage any effort or attempt by any person that constituteto do or seek any Acquisition, or may reasonably be expected to lead to(c) enter into an agreement with any person, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving providing for any material portion Acquisition of the assets Company or (d) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition other than by Parent. In addition to the foregoing, if the Company or any securities of, Member receives any merger, consolidation offer or business combination with, or indication of interest regarding any public announcement of a proposal, plan, or intention to do any of the foregoing byAcquisition, the Company or any the Member (as the case may be) shall immediately notify Parent thereof, including the specific terms of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");each such offer, indication of interest or request, including the identity of the third party.
(iib) enter into, maintain, or continue discussions or negotiations Except as contemplated in this Agreement in connection with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this Agreement, or
(v) authorize for a period of one year following a termination of this Agreement pursuant to Section 8.1, neither Parent nor Sub shall directly or permit the Company Representatives to take indirectly solicit for employment or employ any such action; provided, however, that prior to the approval of the Merger by the shareholders employee of the Company nothing in as of the date of this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach employee hired by the Company after the date of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Ticketmaster Online Citysearch Inc), Agreement and Plan of Reorganization (Ticketmaster Online Citysearch Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementAgreement in accordance with Section 7.1, the Company TEAM and its affiliates shall Vsource and their subsidiaries will not, and shall instruct the Company Representatives not nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment bank, attorney or other advisor or representative (collectively “Representatives”) retained by any of them to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, seek, entertain, encourage, facilitate, support or encourage induce the making, submission or announcement of any proposals that constitute, or could reasonably be expected to result in, a proposal or offer for a merger, consolidation, share exchange, business combination, sale of substantial assets, sale of shares of capital stock (including without limitation pursuant to a tender offer) or similar transaction or series of transactions involving TEAM or Vsource, respectively, other than the transactions contemplated by way this Agreement (any of furnishing nonpublic the foregoing proposals being referred to in this Agreement as an “Acquisition Proposal”), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non public information or assistance)with respect to, or take any other action to facilitate, facilitate any inquiries or proposals from the making of any person proposal that constituteconstitutes, or may reasonably be expected to lead to, an acquisitionany Acquisition Proposal, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(iiiii) enter into, maintain, or continue engage in discussions or negotiations with any person in furtherance of such inquiries or with respect to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal, or (v) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger letter of intent or any other transaction contemplated by this Agreement, or
(v) authorize Contract contemplating or permit the Company Representatives otherwise relating to take any such actionAcquisition Proposal; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.prevent TEAM or
Appears in 2 contracts
Sources: Merger Agreement (Team America Inc), Merger Agreement (Vsource Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999From the date of this Agreement through the Effective Time, the Company shall not, and shall direct its affiliates officers, directors, Affiliates, Equityholders and employees and any investment banker, attorney or other advisor or representative retained by the Company Representatives shall be permitted (all of the foregoing collectively being the “Company Representatives”) not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any proposal or offer that constitutes an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to take provide written notice as to the actions proscribed in clauses existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to any proposal or offer that constitutes an Acquisition Proposal, (b)(iiii) through agree to, accept, approve or recommend any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating any Acquisition Proposal or (v) belowsubmit any Acquisition Proposal to the vote of the Stockholders. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal.
(b) From The Company shall promptly notify Parent orally and in writing after October 15receipt by the Company (or, 1999 until to the termination knowledge of the Company, by any of the Company Representatives), of any Acquisition Proposal.
(c) Upon the execution of this Agreement, the Company and its affiliates shall not, and shall instruct cease all marketing activity related to the Company Representatives not to:
(i) directly Form S-1 and any offering of Company Capital Stock contemplated thereby or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionotherwise; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing covenant set forth in this Section 5.9(d5.2(c) is intended to prevent, deter, or prohibit shall terminate if the Company Board or the Special Committee from taking any action permitted by conditions set forth in Section 5.9(b6.1(c) above and the taking of any such action shall not constitute a breach of this provisionhave been fulfilled by December 1, 2011.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Carpenter Technology Corp), Merger Agreement (Carpenter Technology Corp)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates Each of Seller and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates General Partner shall not, and shall instruct the Company Representatives cause its respective employees, agents and representatives (including, but not limited to, any investment banker, attorney or accountant retained by Seller) not to:
(i) directly or indirectly solicit, initiate, solicit or encourage (including by way of furnishing nonpublic information encourage, directly or assistance), or take any other action to facilitateindirectly, any inquiries or proposals from the making of any person that constituteproposal with respect to any Alternative Transaction, engage in any negotiations concerning, or provide to any other Person any information or data relating to, the Business, the System, the Assets or Seller for the purposes of, or have any discussions with any Person relating to, or otherwise cooperate in any way with or assist or participate in, facilitate or encourage, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any effort or attempt by any other Person to seek or to effect an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination withAlternative Transaction, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionAlternative Transaction; provided, however, that prior nothing contained in this Section 7.12 shall prohibit Seller or the General Partner from making any disclosure to the approval Limited Partners that, in the judgment of the Merger by General Partner based upon the shareholders advice of the Company nothing in this Agreement shall prohibit the Company Board independent counsel, is required under applicable Legal Requirements; and provided, further, that (i) Seller or the Special Committee from (A) furnishing information toGeneral Partner may, and engaging in discussions or negotiations with, any person or entity that makes an upon the unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale request of a material portion of the assets of the Companythird party, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body data (including, without limitationbut not limited to, confidential information or data) relating to the Business, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this AgreementSystem, the Company Board's Assets or Seller for the purposes of facilitating an Alternative Transaction and participate in negotiations with a Person making (or who may reasonably be expected to make) an unsolicited proposal regarding an Alternative Transaction and (ii) following receipt of a proposal for an Alternative Transaction, Seller or the Special Committee's exercise of its rights under clause (AGeneral Partner may terminate this Agreement pursuant to Section 10.1(b)(ii), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shallTCI shall not, and shall cause its affiliates and the Company Representatives Affiliates which it controls not to, cease any and all activities, discussions or negotiations as of such datemake a proposal to Seller regarding an Alternative Transaction. Nothing The restriction set forth in this Section 5.9(d7.12(b) is intended to prevent, deter, shall terminate on the earlier of (i) the Closing or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b(ii) above and the taking of any such action shall not constitute a breach termination of this provisionAgreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mediacom LLC), Asset Purchase Agreement (Mediacom LLC)
No Solicitation. (a) The parties acknowledge Except as expressly permitted by this Section 7.3, from and agree that prior after the date hereof through the earlier to October 15occur of the Company Merger Effective Time and the date, 1999if any, on which this Agreement is terminated pursuant to Section 9.1, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall notshall, and shall instruct the Company cause each of its Subsidiaries and its and their officers and directors to, and shall direct its other Representatives not to:
, (i) immediately cease any activities, solicitation, encouragement, discussions or negotiations with any Persons with respect to any Competing Proposal or Inquiry and (ii) not, directly or indirectly indirectly, (A) solicit, initiateinitiate or knowingly facilitate or encourage, or encourage (including by way of furnishing nonpublic provide any non-public information or assistance)to, or take any other action to facilitatefor the purpose of encouraging or facilitating, any inquiries Competing Proposal or proposals from Inquiry, (B) engage in, continue or otherwise participate in any person that constitutediscussions or negotiations regarding, or may furnish to any other Person information in connection with or for the purpose of encouraging or facilitating, any Competing Proposal or Inquiry, (C) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle or other Contract (other than an Acceptable Confidentiality Agreement) with respect to a Competing Proposal or that would reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination to a Competing Proposal or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, requiring the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteriaContract, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality “Alternative Acquisition Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B”) or (CD) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK resolve, propose or agree to do any of the receipt of foregoing. Promptly after the date hereof (and in any Formal Acquisition Proposalevent, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
within twenty-four (d24) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) abovehours thereafter), the Company shall, and shall cause each of its affiliates Subsidiaries and its and their officers and directors to, immediately terminate all physical and electronic data room access granted to any Person or its Representatives (other than the Parent Parties, their respective Affiliates and their respective Representatives) in connection with any Inquiry, Competing Proposal or its consideration of any Competing Proposal and request the return or destruction by such Person and its Representatives of all non-public information concerning the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionParties.
Appears in 2 contracts
Sources: Merger Agreement (American Campus Communities Inc), Merger Agreement (American Campus Communities Inc)
No Solicitation. (a) The parties acknowledge Company agrees that neither it nor any of its subsidiaries nor any of the officers and agree directors of it or its subsidiaries shall, and that prior it shall not cause its and such subsidiaries’ employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its subsidiaries), not to October 15directly or indirectly, 1999(i) initiate, solicit or knowingly encourage or knowingly facilitate any inquiry, proposal or offer with respect to, or a transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving the Company or any Company subsidiary, or any purchase or sale of 20% or more of the consolidated assets (including stock of its subsidiaries) of the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15subsidiaries, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicit, initiatetaken as a whole, or encourage any purchase or sale of, or tender or exchange offer for, its equity securities that, if consummated, would result in any person (including by way or the stockholders of furnishing nonpublic information such person) beneficially owning securities representing 20% or assistancemore of the Company’s total voting power (or of the surviving parent entity in such transaction) (any such inquiry, proposal, offer or transaction, an “Acquisition Proposal”), (ii) have any discussion with or take provide or cause to be provided any other action non-public information to facilitateany person relating to an Acquisition Proposal, or engage or participate in any negotiations concerning an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any inquiries Acquisition Proposal or proposals from any person that constitute(iv) approve, endorse or recommend, or may reasonably be expected propose publicly to lead toapprove, an acquisitionendorse or recommend, purchaseor execute or enter into, mergerany letter of intent, consolidationoption agreement, share exchangeagreement in principle, recapitalizationmerger agreement, business combination acquisition agreement or other similar transaction involving any material portion of the assets agreement or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention agree to do any of the foregoing byrelated to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of this Section 5.3 by any subsidiary of the Company or representatives of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.3 by the Company.
(b) Notwithstanding anything in this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, the Company or its Board of Directors may (i) engage or participate in negotiations or discussions with, or provide or cause to be provided any information to, any person in response to an unsolicited Acquisition Proposal that did not result from a material breach of clause (a) above if (A) the Company’s Board of Directors concludes in good faith, after consultation with its outside counsel and financial advisors, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (as defined below) and (B) prior to providing any non-public information to any person in connection with an Acquisition Proposal by any such person, the Company receives from such person an executed confidentiality agreement having provisions that are no less restrictive than those of the Confidentiality Agreement (it being understood that the Company may enter into a confidentiality agreement without a standstill provision or with a standstill provision less favorable to the Company if it waives or similarly modifies the standstill provision in the Confidentiality Agreement); provided that the Company shall promptly provide or make available to Parent any material non-public information concerning the Company or any of its Subsidiaries (that is provided to the person making such transactions being referred Alternative Proposal or such person’s representatives which was not previously provided or made available to herein as "Acquisition Proposals");
Parent or its representatives, (ii) enter intofail to make, maintainwithdraw, modify or continue discussions qualify (or negotiations with any person in furtherance of such inquiries publicly propose to withdraw, modify or qualify) the Company Recommendation or approve or recommend (or publicly propose to obtain an Acquisition Proposal;
(iiiapprove or recommend) agree to or endorse any Acquisition Proposal;
(iv) enter into Proposal or letter of intent, agreement in principle, acquisition agreement or similar agreement providing for any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.a
Appears in 2 contracts
Sources: Merger Agreement (Pogo Producing Co), Merger Agreement (Plains Exploration & Production Co)
No Solicitation. (a) The parties acknowledge and agree that prior From the date hereof until the Closing Date, or the Final Closing Date if the Purchaser elects to October 15, 1999have more than one Closing, the Company shall not and shall cause its affiliates Affiliates and each of their respective officers, directors, employees, auditors, agents, representatives, consultants, advisors, investment bankers, attorneys, accountants and other agents (collectively, "Representatives") not to, directly or indirectly, (i) initiate, solicit or entertain offers from, negotiate with or in any manner knowingly encourage, discuss, accept, or consider any proposal of any other person relating to (w) the acquisition of capital stock of the Company Representatives shall or any of its Subsidiaries, securities convertible into or exchangeable for shares of capital stock of the Company or any of its Subsidiaries, (x) the acquisition of the Company's or any of its Subsidiaries' assets or business, in whole or in part, whether directly or indirectly, through purchase, merger, consolidation, business combination, recapitalization, liquidation, dissolution or otherwise, (y) the incurrence of indebtedness for borrowed money by the Company or any of its Subsidiaries, or (z) any other transaction the consummation of which could reasonably be permitted expected to take impede, interfere with, prevent, delay or dilute the actions proscribed in clauses benefits to the Purchaser of the transactions contemplated hereby, including, without limitation, by taking any action that would make Section 203 of the DGCL or the Rights Agreement inapplicable to an Alternative Transaction (b)(i) through (v) below.
(b) From and after October 15, 1999 until other than the termination of transactions contemplated by this Agreement, sales of inventory in the ordinary course and shares issued upon the exercise of existing stock options) (any of the foregoing being an "Alternative Transaction"), (ii) initiate, participate engage in, or agree to initiate, participate or engage in negotiations or discussions concerning, or provide to any person or entity any information or data relating to the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicit, initiateany Subsidiary, or encourage (including by way of furnishing nonpublic information otherwise cooperate with or assistance)assist or participate in, facilitating or take any other action to facilitateencouraging, any inquiries or proposals from the making of any person proposal that constituteconstitutes, or may reasonably be expected to lead toto an Alternative Transaction, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse in connection with any Acquisition Proposal;
(iv) enter into any agreementAlternative Transaction, arrangement or understanding requiring require it to abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this AgreementAgreement or the other Documents, or
(iv) grant any waiver or release under or amend any standstill, confidentiality or similar agreement entered into by the Company or any of its Affiliates or representatives; (v) authorize agree to, approve or permit recommend any Alternative Transaction, or (vi) take any other action inconsistent with the obligations and commitments assumed by the Company Representatives pursuant to take any such actionthis Section 5.11; provided, however, that prior to nothing contained herein shall limit the approval of the Merger by the shareholders ability of the Company nothing to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; and provided further that if, in this Agreement shall prohibit respect of an offer, proposal or inquiry relating to a possible Alternative Transaction from a third party or entity made after the date hereof which has not been solicited or encouraged in violation of clause (i) or (ii) above, the Board of Directors of the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting consultation with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a its fiduciary obligation to furnish such information duties so require, the Company and its Representatives may participate or engage in such discussions or negotiations with such person third party or entity (any concerning such proposal meeting Alternative Transaction, or provide such criteria, a "Superior Proposal"), provided, that prior third party with information or data relating to taking such action, the Company notifies HK or any Subsidiary, in each case for purposes of complying with its intentions disclosure obligations to its stockholders in connection with the Stockholders' Meeting. The Company shall immediately cease and obtains an executed confidentiality agreement from the appropriate parties substantially similar cause to the Confidentiality Agreementbe terminated any existing activities, (B) failing to make discussions or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be negotiations by the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act Affiliates or their respective Representatives with any person conducted heretofore with respect to any tender offerof the foregoing. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.11 by any Representative of the Company or any of its Affiliates whether or not such person is purporting to act on behalf of the Company or any of its Affiliates, shall constitute a breach of this Section 5.11 by the Company.
(b) From the date hereof until the Closing Date, or taking the Final Closing Date if the Purchaser elects to have more than one Closing, neither the Board of Directors of the Company nor any other legally required action, committee thereof shall (i) withdraw or any action required modify the approval or recommendation by the rules such Board of Directors or regulations such committee of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's other Documents or any of the Special Committee's exercise of its rights under clause (A)transactions contemplated hereby or thereby, (Bii) approve or recommend any Alternative Transaction or (Ciii) above shall not constitute a breach by cause or permit the Company or any Affiliate to enter into any letter of this Agreementintent, agreement in principle or other arrangement or agreement with respect to an Alternative Transaction.
(c) The Company will promptly notify HK In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.11, the Company shall promptly (but in any event within 24 hours of receipt or occurrence thereof), (i) advise the Purchaser orally and in writing of any Formal Acquisition Proposalrequest for information with respect to, or any inquiry or proposal regarding any Alternative Transaction, or of any information received from Tribune or Nevis in respect of a request for information directed to such stockholder with respect to, or of any inquiry or proposal regarding any Alternative Transaction, (ii) advise the Purchaser of the terms and conditions of such request or inquiry, and (iii) provide to the Purchaser copies of any written documentation material to understanding or evaluating such request, Alternative Transaction or inquiry (the "Alternative Transaction Documentation") which is received by the Company from the person (or from any Representatives of such person) making such Alternative Transaction, inquiry or proposal and the identity of the person making itany such request, Alternative Transaction or such inquiry or proposal. The Company also will promptly notify HK shall (x) keep the Purchaser fully informed of the status and material details (including amendments or proposed amendments) of any change such request or Alternative Transaction, (y) keep the Purchaser fully informed as to the material details of any information requested, and (z) provide to the Purchaser within one day of receipt thereof all copies of any additional Alternative Transaction Documentation received by the Company from the person (or modification from any Representatives of such Formal Acquisition Proposal and person) making such Alternative Transaction, inquiry or proposal. The Company shall promptly provide to the terms and conditions thereofPurchaser any information concerning the Company provided to any other person in connection with any Alternative Transaction which was not previously provided to the Purchaser.
(d) To The Company shall immediately request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the extent that, as of October 15, 1999, the Company, any of its affiliates Company or any Company Representative is engaged in discussions portion thereof to return or negotiations with any destroy all confidential information heretofore furnished to such person by or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, on behalf of the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of shall use its commercially reasonable efforts to have such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisioninformation returned.
Appears in 2 contracts
Sources: Purchase Agreement (Peapod Inc), Purchase Agreement (Royal Ahold)
No Solicitation. (a) The parties acknowledge and agree that prior Subject to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistanceSection 6.6(c), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates Subsidiaries and its and their Representatives to, (i) immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Third Party relating to any Competing Proposal or any inquiry, discussion, offer or request that could reasonably be expected to lead to a Competing Proposal (an “Inquiry”) and immediately terminate all physical and electronic data room access previously granted to any such Third Party, (ii) request the prompt return or destruction of all confidential information previously furnished to any such Third Party with respect to any Competing Proposal or Inquiry and (iii) 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 Competing Proposal or Inquiry.
(b) Except as expressly provided in Section 6.6(c), until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause its Subsidiaries and its and their Representatives not to, directly or indirectly, (i) initiate, solicit, endorse, facilitate or knowingly encourage the making of any Competing Proposal or Inquiry, (ii) continue or engage in negotiations or discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 6.6), or knowingly furnish any information to, any Third Party relating to a Competing Proposal or any Inquiry or (iii) resolve, agree or publicly propose to do any of the foregoing.
(c) Notwithstanding anything to the contrary in Section 6.6(a) or Section 6.6(b), at any time prior to the date that the Company Stockholder Approval is obtained, in the event that the Company (or its Representatives on the Company’s behalf) receives directly or indirectly a written Inquiry or a written Competing Proposal from any Third Party that (i) the Company Board determines in good faith to be bona fide, (ii) was unsolicited and (iii) did not otherwise result from a breach of this Section 6.6(c), the Company and the Company Board and its Representatives may engage or participate in negotiations or discussions with, or furnish any information and other access to, cease any Third Party making such Inquiry or Competing Proposal and its Representatives and Affiliates and prospective debt and equity financing sources that have been specifically engaged for the purpose of financing such Competing Proposal if the Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that (A) such Inquiry or Competing Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal and (B) the failure to take such action could reasonably be expected to be inconsistent with the fiduciary duties of the Company Board under the DGCL; provided that (x) prior to furnishing any information concerning the Company and its Subsidiaries the Company receives from such Person, to the extent such Person is not already subject to a confidentiality agreement with the Company containing confidentiality terms that are not materially less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (unless the Company offers to amend the Confidentiality Agreement to reflect such more favorable terms) (an “Acceptable Confidentiality Agreement”), and (y) the Company shall promptly provide or make available to Parent (I) an unredacted copy of each such Acceptable Confidentiality Agreement and (II) all activitiesnon-public information concerning it or its Subsidiaries that it provides to any Third Party given such access that was not previously made available to Parent or its Representatives. It is understood and agreed that any contacts, disclosures, discussions or negotiations expressly permitted under this Section 6.6(c), including any public announcement that the Company or the Company Board has made any determination required under this Section 6.6(c) to take or engage in any such actions (provided that the Company Board expressly publicly reaffirms the Company Recommendation concurrently with such public disclosure), shall not constitute a basis for Parent to terminate this Agreement pursuant to Section 8.1(d)(ii).
(d) Neither the Company nor the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and, except as of such date. Nothing expressly provided in this Section 5.9(d6.6(d), neither the Company Board nor any committee thereof shall approve or recommend, and the Company shall not (and shall cause each of its Subsidiaries not to) is intended execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract or agreement, in each case constituting or with respect to, any Competing Proposal or Inquiry (each, an “Alternative Acquisition Agreement”), in each case other than an Acceptable Confidentiality Agreement, and neither the Company Board nor any committee thereof shall resolve, agree or publicly propose to preventtake any such actions. Notwithstanding the immediately preceding sentence, deterat any time prior to the receipt of the Company Stockholder Approval, the Company Board may, if the Company has received a Competing Proposal after the date of this Agreement that (i) the Company Board has determined in good faith to be bona fide, (ii) was unsolicited, (iii) did not otherwise result from a breach of this Section 6.6 and (iv) the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a Superior Proposal, authorize, adopt or approve such Superior Proposal and cause the Company to enter into a binding definitive agreement providing for the consummation of such Superior Proposal concurrently with the termination of this Agreement in accordance with Section 8.1(c)(ii), and, provided that:
(i) the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance, that it intends to terminate this Agreement pursuant to Section 8.1(c)(ii) in order to enter into a binding definitive agreement providing for the consummation of a Superior Proposal (a “Notice of Superior Proposal”), which notice shall specify in reasonable detail the basis for such termination and the identity of the Person or group of Persons making such Superior Proposal and the terms and conditions thereof and include a copy of the final negotiated definitive agreement (which need not include signatures and may contain brackets of the type that are completed in or removed from a definitive agreement of that nature just prior to the execution thereof) providing for the consummation of such Superior Proposal and any material ancillary agreements (which need not include signatures and may contain brackets of the type that are completed in or removed from a definitive agreement of that nature just prior to the execution thereof) being executed or to be executed in connection therewith (provided, that any amendment to the financial terms or any other material terms of such Superior Proposal shall require a new written notice by the Company and a new two (2) Business Day period (unless such two (2) Business Day period would be shorter than the amount of time remaining in such original three (3) Business Day period, in which case such original three (3) Business Day period shall remain in effect);
(ii) after providing such notice and prior to terminating this Agreement pursuant to Section 8.1(c)(ii), the Company shall have negotiated, and shall have caused its Representatives to negotiate, with Parent and Acquisition Sub and their respective Representatives in good faith (to the extent Parent and Acquisition Sub desire to negotiate) during such three (3) or two (2) Business Day period (as applicable) to make such adjustments to the terms and conditions of this Agreement as would obviate the need for the Company to terminate this Agreement pursuant to Section 8.1(c)(ii); and
(iii) following the end of such three (3) or two (2) Business Day period (as applicable), the Company Board shall have determined in good faith, after consultation with its financial advisors and outside legal counsel, taking into account any changes to this Agreement proposed in writing by Parent in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to be a Superior Proposal.
(e) Nothing contained in this Section 6.6 shall be deemed to prohibit the Company or the Company Board or any committee thereof from (i) complying with its disclosure obligations under Applicable Law or applicable NASDAQ rules and regulations, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Special Committee from taking Exchange Act or (ii) making any action “stop-look-and-listen” communication to stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act; provided, however, that any disclosure made as permitted under clause (i) of this Section 6.6(e) (other than any “stop-look-and-listen” communication or a factually accurate public statement by Section 5.9(b) above the Company that describes the Company’s receipt of a Competing Proposal and the taking operation of this Agreement with respect thereto) that relates to a Competing Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Company Recommendation in such disclosure.
(f) The Company shall promptly (and in any event within 48 hours of receipt) advise Parent in writing in the event that it or any of its Subsidiaries or any of its or their Representatives receives any Inquiry or Competing Proposal from any Third Party, in each case together with a description of the material terms and conditions of and facts surrounding any such Inquiry or Competing Proposal, the identity of the Third Party making such Inquiry or Competing Proposal and a copy of any written proposal, offer, draft agreement, term sheet or other analogous agreement provided by such Third Party. The Company shall keep Parent reasonably informed (orally and in writing) on a timely basis of the status and details (including within 48 hours after the occurrence of any amendment, modification, development, discussion or negotiation) of any such action Inquiry or Competing Proposal, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting any of the foregoing, the Company shall not constitute a breach promptly (and in any event within 24 hours) notify Parent in writing if it determines to begin providing information or to engage in discussions or negotiations concerning an Inquiry or Competing Proposal and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(g) For purposes of this provision.Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Portman Ridge Finance Corp), Merger Agreement (Harvest Capital Credit Corp)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15Company agrees that, 1999except as provided in Section 8.5(c), the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) neither it nor any of its Subsidiaries shall, nor shall its or any of its Subsidiaries' officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) initiate, solicit or encourage, directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitateindirectly, any inquiries or proposals from the making or implementation of any person that constituteproposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any purchase of all or other similar transaction involving any material significant portion of the assets or all or any significant portion of the equity securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (any such transactions proposal or offer being referred to herein as an "Acquisition ProposalsALTERNATIVE PROPOSAL");
, or engage in any negotiations concerning, or provide any information or data to, or have any discussions with, any person other than Purchaser, Sub or any affiliates thereof (a "THIRD PARTY") relating to an Alternative Proposal, or release any Third Party from any obligations under any existing standstill agreement or arrangement, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (ii) enter intoit will immediately cease and cause to be terminated any existing activities, maintain, or continue discussions or negotiations with any person in furtherance Third Parties conducted heretofore with respect to any of such inquiries or to obtain an Acquisition Proposal;the foregoing.
(iiib) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing Notwithstanding anything in this Agreement shall prohibit to the contrary, the Company and its Board or the Special Committee from of Directors shall be permitted to (Ai) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faithapplicable, after consulting comply with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to an Alternative Proposal, (ii) file a Form 8-K with the SEC and issue a press release in accordance with Section 8.12 with respect to the entering into of this Agreement and the transactions contemplated hereby, including any tender offerexhibits deemed appropriate with respect to such Form 8-K and (iii) effect a Change in Company Recommendation, if, in the case of this clause (iii), (A) the Company receives a bona fide, written proposal or taking offer relating to an Alternative Proposal by a Third Party, which the Board of Directors determines in good faith (after consulting the Board of Directors' independent legal and financial advisors) (I) is reasonably likely to result in terms which are more favorable from a financial point of view to the holders of Shares than the Merger and the other transactions contemplated by this Agreement and (II) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any other legally required actionof its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal, any material contingencies and the capability of consummation) (any such proposal or offer being referred to herein as a "SUPERIOR PROPOSAL"), (B) the Company has furnished to Purchaser a Notice of Superior Proposal and (C) Purchaser does not, within 48 hours of Purchaser's receipt of the Notice of Superior Proposal, deliver to the Company a binding, written offer to acquire 100% of the equity securities of the Company (by merger or otherwise) that the Board of Directors of the Company determines in its good faith judgment to be at least as favorable to the Company's stockholders as such Superior Proposal (any action required by such proposal or offer being referred to herein as a "MATCHING OFFER"). The Company agrees that it will use commercially reasonable efforts to inform promptly its directors, officers, key employees, agents and representatives of the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding obligations undertaken in this Section 8.5. Notwithstanding anything to the contrary in this Agreement, the Board of Directors of the Company Boardmay effect a Change in Company Recommendation if in the good faith opinion of the Board of Directors of the Company, after consultation with counsel, the Company Recommendation is reasonably determined to be inconsistent with its fiduciary duties to the Company's or the Special Committee's exercise of its rights stockholders under clause (A), (B) or (C) above applicable law. Any such Change in Company Recommendation shall not constitute a breach by the Company of this Agreement.
(c) The Notwithstanding anything in this Agreement to the contrary, the Company will promptly notify HK may engage in discussions or negotiations with, or provide information to, any Person in response to a bona fide written Alternative Proposal by any Person not solicited by the Company in violation of this Section 8.5, if and only to the receipt extent that, (i) such Alternative Proposal constitutes a Superior Proposal (provided that the Company, including its Board of Directors and any of its advisors, shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal, any material contingencies and the capability of consummation), (ii) prior to providing any non-public information or data to any Person in connection with an Alternative Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement containing confidentiality terms as least as stringent as those contained in the Confidentiality Agreement referred to in Section 8.7 (except that the confidentiality agreement to be entered into with a Third Party does not have to contain a limit on the time period during which information can be exchanged between the Company and the Third Party) and (iii) concurrently with the provision of any Formal Acquisition non-public information or data to any Person in connection with an Alternative Proposal or entering into discussions or negotiations with any Person in connection with an Alternative Proposal, the Company notifies Purchaser of such Alternative Proposal, any such non-public information requested from the Company, or any such discussions or negotiations sought to be initiated or continued with, any of the Company's representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to inquiries, proposals or modification of such Formal Acquisition Proposal and the terms and conditions thereofoffers.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit 8.5 shall permit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of to terminate this provisionAgreement other than pursuant to Article X hereof.
Appears in 2 contracts
Sources: Merger Agreement (Seracare Inc), Merger Agreement (Grupo Grifols Sa)
No Solicitation. (a) The parties acknowledge Notwithstanding anything to the contrary contained in this Agreement, during the period beginning immediately following the execution of this Agreement and continuing until 11:59 p.m. (Dallas, Texas time) on the thirtieth (30th) day thereafter (the “Solicitation Period End Date”), the Company shall have the right to, and may cause its Subsidiaries and the Company’s and its Subsidiaries’ respective directors, officers, employees and Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate the submission of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Company Acquisition Proposal, (ii) engage in any discussions or negotiations with, or provide any confidential information or data to, any person relating to a Company Acquisition Proposal, in each case pursuant to one or more Acceptable Confidentiality Agreements, (iii) terminate, waive, amend or modify any provision of any Standstill Agreement or confidentiality agreement to which the Company is a party to the extent necessary to allow the other party thereto to submit any Company Acquisition Proposal or to inquire, propose or make an offer that may lead to a Company Acquisition Proposal or (iv) propose or agree to do any of the foregoing. Parent agrees that neither it nor any of its affiliates shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to, participate in discussions with, any person (or group that includes any person) that prior to October 15the execution of this Agreement directly or indirectly, 1999whether through its affiliates or Representatives, (1) accessed the on-line data room hosted on behalf of the Company in connection with evaluating a potential acquisition of the Company, (2) participated in substantive negotiations with the Company or its Representatives regarding a Company Acquisition Proposal or (3) submitted a Company Acquisition Proposal to the Company or its Representatives, in each case within 180 days prior to the date of this Agreement (any such person, a “Prior Bidder”); provided, however, that nothing in this sentence shall prohibit or restrict Parent from making or conducting public communications or solicitations regarding (i) a Company Acquisition Proposal or (ii) the transactions contemplated by this Agreement in accordance with Section 5.8. The Company will substantially concurrently make available to Parent or its Representatives any non-public information concerning the Company and its affiliates and Subsidiaries that is provided by the Company to any person or its Representatives pursuant to this Section 5.4(a) that was not previously provided or made available to Parent as promptly as reasonably practicable (but in any event within one (1) day) after providing (or causing to be provided) any such information pursuant to this Section 5.4(a) and shall be permitted not provide to take the actions proscribed in clauses (b)(i) through (v) belowany such person any non-public information of or relating to Parent, Merger Subs or any of their respective affiliates or Representatives.
(b) From and after October 15, 1999 Except (i) as expressly permitted by this Section 5.4 or (ii) with respect to any Exempted Person until the termination of date that is twenty (20) days following the Solicitation Period End Date, from the Solicitation Period End Date until the Effective Time or, if earlier, the date on which this AgreementAgreement is terminated in accordance with Article VII, the Company and its affiliates shall not, and the Company shall cause its Subsidiaries not to, and shall instruct the Company and use reasonable best efforts to cause its and its Subsidiaries’ respective directors, officers, employees and Representatives not to:
(i) , directly or indirectly indirectly, (a) initiate, solicit, initiate, knowingly encourage or encourage knowingly facilitate (including by way of furnishing nonpublic information providing information) the submission of any inquiries, proposals or assistance), offers that constitute or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may would reasonably be expected to lead toto any Company Acquisition Proposal, an acquisition(b) engage in, purchase, merger, consolidation, share exchange, recapitalization, business combination conduct or knowingly facilitate any discussions (other similar transaction involving any material portion of the assets than to state that they are not permitted to have discussions) or any securities of, any merger, consolidation or business combination negotiations with, or provide any confidential information or data to, any person relating to a Company Acquisition Proposal, (c) furnish to any person (other than to Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public announcement information relating to the Company or any of a proposalits Subsidiaries or afford to any person access to the business, planproperties, assets, books, records or other non-public information, or intention to do any personnel, of the foregoing by, the Company or any of its Subsidiaries (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in any such transactions being referred case with the intent to herein as "induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, a Company Acquisition Proposals"Proposal or any inquiries or efforts, or the making, of any proposal that would reasonably be expected to lead to a Company Acquisition Proposal, (d) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Recommendation or approve or recommend, or propose publicly to approve or recommend, any Company Acquisition Proposal (any act described in this clause (d);
, a “Change of Recommendation”), (iie) waive the applicability of all or any portion of any anti-takeover Laws in respect of any person (other than Parent and its affiliates), (f) approve or recommend, or propose to approve or recommend, or execute or enter into, maintain, any letter of intent or continue discussions other document or negotiations with Contract related to any person Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement as provided in furtherance of such inquiries Section 5.4(c)) or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement letter of intent or understanding other document or Contract requiring it the Company to (or otherwise contemplated that the Company) abandon, terminate or fail to consummate the Merger transactions contemplated hereby or breach its obligations hereunder, or (g) resolve, propose or agree to do any of the foregoing. Except (1) as expressly permitted by this Section 5.4 or (2) with respect to any Exempted Person until the date that is twenty (20) days following the Solicitation Period End Date, from the Solicitation Period End Date until the Effective Time or, if earlier, the date on which this Agreement is terminated in accordance with Article VII, the Company will, and will cause its Subsidiaries to, and will instruct and use reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees and Representatives to, immediately cease and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all activities, discussions or negotiations conducted with any persons other than Parent with respect to any Company Acquisition Proposal, including immediately revoking or withdrawing access of any person other than Parent and its directors, officers, employees and Representatives to any data room (virtual or actual) containing any non-public information with respect to the Company or its Subsidiaries previously furnished with respect to a Company Acquisition Proposal and using reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any other transaction contemplated of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries in connection with such activities, discussions or negotiations conducted with respect to any Company Acquisition Proposal to return or destroy (and confirm destruction of) all such information pursuant to the terms of any binding agreement to do so. For the avoidance of doubt, the foregoing will not prevent the Company from communicating with a prospective acquirer to request clarification of the terms and conditions of a possible Company Acquisition Proposal so as to determine whether such Company Acquisition Proposal could reasonably be expected to lead to a Company Superior Proposal. Without limiting the foregoing, it is understood that any violation of this AgreementSection 5.4 by any directors, orofficers, employees of the Company or any of its Subsidiaries, or Representatives acting on behalf of the Company or any of its Subsidiaries, shall be deemed to be a breach of this Section 5.4 by the Company.
(vc) authorize or permit Notwithstanding the foregoing provisions of Section 5.4(b), from the Solicitation Period End Date until the time the Company Stockholder Approval is obtained, if the Company, any of its Subsidiaries or any of their Representatives receives an unsolicited bona fide written Company Acquisition Proposal that did not result from a breach of this Section 5.4 and the Company Board concludes in good faith (after consultation with the Company’s outside legal and financial advisors) that such Company Acquisition Proposal constitutes a Company Superior Proposal or could reasonably be expected to take any result in a Company Superior Proposal, the Company may, and may permit its Subsidiaries and its and their directors, officers, employees and Representatives, to (i) enter into and maintain discussions or negotiations with the person making such actionCompany Acquisition Proposal and (ii) furnish non-public information and afford access to the business, employees, officers, Contracts, properties, assets, books and records of the Company and its Subsidiaries to the person making such Company Acquisition Proposal; provided, however, that (a) prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board providing (or the Special Committee from (Acausing to be provided) furnishing such information or affording such access to, and engaging in or entering into or maintaining such discussions or negotiations with, such person (other than informing such person of the provisions contained in this Section 5.4 or contacting such person making any Company Acquisition Proposal to clarify the terms and conditions thereof), the Company shall have entered into an Acceptable Confidentiality Agreement with such person and (b) the Company will provide to Parent any non-public information relating to the Company or any of its Subsidiaries that was not previously provided or made available to Parent as promptly as reasonably practicable (but in any event within one (1) day) after providing (or causing to be provided) any such information to such person making or who has made such Company Acquisition Proposal and shall not provide to such person making any Company Acquisition Proposal any non-public information of or relating to Parent, Merger Subs or any of their respective affiliates or Representatives.
(d) As promptly as reasonably practicable, and in any event within forty-eight (48) hours after the expiration of the Solicitation Period End Date, the Company shall (i) notify Parent in writing of the identity of each person, if any, that, in accordance with this Agreement, the Company Board has determined to be an Exempted Person and (ii) provide Parent with a reasonably detailed summary of the material terms and conditions of any Company Acquisition Proposal received from any Exempted Person prior to the Solicitation Period End Date (it being understood that, to the extent then known, price per share, transaction structure, closing conditions, and, to the extent part of the Company Acquisition Proposal, financing provisions shall be considered material terms of any such Company Acquisition Proposal). In addition to the foregoing, the Company shall notify Parent orally and in writing promptly (but in any event within two (2) Business Days) after (a) receipt of any Company Acquisition Proposal (or any inquiry, request, proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal) that the Company receives after the Solicitation Period End Date, which notice shall include the identity of the person making such proposal or offer, a summary of the material terms of all such proposals or offers and copies of drafts of proposed agreements, term sheets or letters of intent related thereto received by the Company, (b) of any change to the financial or other material terms and conditions of any Company Acquisition Proposal received after the Solicitation Period End Date, and the Company shall otherwise keep Parent reasonably informed of developments with respect to, and the status of, any such Company Acquisition Proposal (including by providing copies of all proposals, offers and drafts of proposed agreements related thereto that have not already been provided pursuant to clauses (a) and (b) above) and (c) receipt by the Company or its Representatives of any request for non-public information received after the Solicitation Period End Date relating to the Company or any of its Subsidiaries or for access to the Company or any of its Subsidiaries’ properties, books or records by any person in connection with a Company Acquisition Proposal (or entity any inquiry, request, proposal or offer that makes an unsolicited written, bona fide proposal could reasonably be expected to acquire lead to a Company Acquisition Proposal). Neither the Company and/or nor any of its Subsidiaries pursuant to a mergershall, consolidationafter the date of this Agreement, share exchange, tender offer, recapitalization, business combination enter into any confidentiality or other similar transactionagreement or obligation that would prohibit it from providing such information to Parent.
(e) Prior to the time the Company Stockholder Approval is obtained, or any the Company Board may terminate this Agreement in accordance with Section 7.1(h) in order to enter into a binding definitive agreement to effect a transaction involving constituting a Company Superior Proposal (and make a Change of Recommendation with respect thereto), if and only if:
(i) the sale Company receives a Company Acquisition Proposal (regardless of whether from an Exempted Person) that did not result from a material portion breach of Section 5.4(b) and the assets Company Board determines in good faith (after consultation with the Company’s outside legal and financial advisors) that such Company Acquisition Proposal constitutes a Company Superior Proposal;
(ii) the Company provides Parent prior written notice of the Company’s intention to terminate this Agreement pursuant to Section 7.1(h) (a “Superior Proposal Notice”), but only which notice shall identify the person making such Company Superior Proposal and include the price and material terms and conditions of such Company Superior Proposal, including copies of any written proposals or offers and any proposed agreements related thereto;
(iii) for at least four (4) Business Days after Parent’s receipt of such Superior Proposal Notice (such minimum period, the “Notice Period”), the Company has negotiated, and has caused its financial and legal advisors (and other Representatives) to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Company Acquisition Proposal ceases to constitute a Company Superior Proposal (it being understood and agreed that any revision to the financial terms or any other material term of such Company Superior Proposal shall require a new Superior Proposal Notice and the Company shall be required to comply again with the provisions of this Section 5.4(e) with respect to such new notice, except that such Notice Period shall be two (2) Business Days (rather than four (4) Business Days)); and
(iv) at the end of the period (or periods) referred to in clause (iii) above, the Company Board or the Special Committee determines has concluded in good faith, faith (after consulting consultation with independent the Company’s outside legal counsel (and financial advisors) that such Company Acquisition Proposal still constitutes a Company Superior Proposal after giving effect to all of the adjustments which may be the Company's regularly engaged outside legal counseloffered by Parent pursuant to clause (iii) above and that a failure to terminate this Agreement in order to enter into a definitive agreement with respect to such Company Superior Proposal would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law.
(f) Other than in connection with a Company Acquisition Proposal (which shall be subject to Section 5.4(e) and shall not be subject to this Section 5.4(f)), that it has prior to the time the Company Stockholder Approval is obtained, the Company Board may, in response to an Intervening Event, make a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity Change of Recommendation if and only if (any such proposal meeting such criteria, a "Superior Proposal"), provided, that i) prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to Board determines in Section 5.12 hereof if the Company Board or the Special Committeegood faith, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, ’s and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A)’s outside legal and financial advisors, (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of that failure to take such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.actio
Appears in 2 contracts
Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999Company, the Company Subsidiary and its their respective officers, directors, employees, representatives, agents or affiliates and (including, without limitation, any investment banker, attorney or accountant retained by the Company Representatives or the Subsidiary) (collectively, the "Company's Representatives") shall immediately cease any discussions or negotiations with any party that may be permitted ongoing with respect to take the actions proscribed in clauses a Competing Transaction (b)(i) through (v) as defined below.
(b) ). From and after October 15, 1999 the date hereof until the termination of this Agreement, neither the Company and its affiliates shall notnor the Subsidiary will, and shall instruct nor will the Company authorize or permit the Subsidiary or any of the Company Representatives not to:
(i) , directly or indirectly solicitindirectly, initiate, solicit or knowingly encourage (including by way of furnishing nonpublic information or assistancenon-public information), or take any other action to facilitate, any inquiries or proposals from the making of any person proposal that constituteconstitutes, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination withCompeting Transaction, or participate in any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with regarding any person in furtherance of such inquiries Competing Transaction or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
Competing Transaction, and the Company shall notify Acquiror orally (ivwithin one business day) enter into any agreement, arrangement and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which it or understanding requiring it to abandon, terminate or fail to consummate the Merger Subsidiary or any other transaction contemplated by this Agreementsuch Company Representative may receive relating to any such matters and, or
(v) authorize if such inquiry or permit proposal is in writing, the Company Representatives shall deliver to take any Acquiror a copy of such actioninquiry or proposal promptly; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing contained in this Agreement Section 6.2 shall prohibit the Company or its Board or the Special Committee of Directors from (Ai) furnishing information totaking and disclosing to its stockholders a position contemplated by Exchange Act Rule 14e-2 or (ii) making any disclosure to its stockholders that, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK faith judgment of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committeeof Directors, after consultation with and based upon the advice of independent legal counsel (who may be the Company's regularly engaged outside independent legal counsel), is required under applicable law; provided, further, that until September 7, 1997 nothing contained in this Section 6.2 shall prohibit the Company from furnishing information to, or entering into discussions or negotiations with, any person or entity that after the date hereof and prior to September 7, 1997 states in an unsolicited writing that it has a bona fide serious interest to make a Superior Proposal (as defined below) if (1) (x) the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel (who may be the Company's regularly engaged independent legal counsel) determines in good faith that it has a such action is necessary for the Board of Directors of the Company to comply with its fiduciary obligation duties to do so, provided that HK is given two days' prior written notice of its intentions to do so, stockholders under applicable law and (Cy) disclosing to after consultation with and based upon the advice of an independent financial advisor (who may be the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, regularly engaged independent financial advisor) determines in good faith that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute is capable of making, financing and consummating a Superior Proposal as defined in and (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.2)
Appears in 2 contracts
Sources: Merger Agreement (SPS Technologies Inc), Merger Agreement (SPS Technologies Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall It will not, and shall instruct the Company Representatives will not directly or indirectly authorize or permit any of its affiliates, representatives or agents or any of their respective officers, directors or employees to:
: (i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), information) or take any other action to facilitate, any inquiries inquiry or proposals from the making of any person that constituteproposal which constitutes, or may reasonably be expected to lead to, an acquisitionany direct or indirect acquisition or purchase of 15% or more of the assets (by value) or GSE Common Stock, purchaseany tender offer or exchange offer that if consummated would result in any person or entity beneficially owning 15% or more of the GSE Common Stock, or any merger, consolidation, share exchangebusiness combination, sale of substantially all assets, sale of securities, recapitalization, business combination liquidation, dissolution or other similar transaction involving GSE (other than the transactions contemplated by this Agreement) or any other material portion corporate transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the merger contemplated by this Agreement (collectively, "GSE Transaction Proposals") or agree to or endorse any GSE Transaction Proposal or (ii) propose, enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to another person or entity any information with respect to its business, properties or assets or any securities ofof the foregoing, or otherwise cooperate in any merger, consolidation or business combination way with, or assist or participate in, facilitate or encourage, an effort or attempt by any public announcement of a proposal, plan, other person or intention entity to do or seek to do any of the foregoing byforegoing, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement foregoing clauses (i) and (ii) shall not prohibit the Company Board or the Special Committee GSE from (Aa) furnishing information topursuant to an appropriate confidentiality and standstill letter no more favorable to such person or entity than the confidentiality agreement with Parent concerning GSE and its businesses, and properties or assets to such person or entity who has made a Superior GSE Transaction Proposal (as defined below) or (b) engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "third party who has made a Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation GSE Transaction Proposal but in each case referred to in Section 5.12 hereof if the Company Board or foregoing clauses (a) and (b) only after the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines board of directors of GSE concludes in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice following advice of its intentions outside counsel that such action would be required for the board of directors of GSE to do so, and (C) disclosing comply with its fiduciary obligations to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable stockholders under applicable securities laws); and, provided further, that notwithstanding anything to law. If the contrary in this Agreement, the Company Board's or the Special Committee's exercise board of its rights under clause (A), (B) or (C) above shall not constitute directors of GSE receives a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition GSE Transaction Proposal, then GSE shall immediately inform Parent of the terms and conditions of such proposal and the identity of the person or entity making it. The Company also will promptly notify HK it and shall keep Parent fully informed of the status and details of any change to or modification of such Formal Acquisition GSE Transaction Proposal and the terms and conditions thereofof all steps it is taking in response to such GSE Transaction Proposal; provided that nothing contained in this Subparagraph 4.
(d) To 2.11.1 shall prohibit GSE or its board of directors from making any disclosure to GSE's stockholders which, in the extent thatgood faith judgment of GSE's board of directors, as may be required under applicable law. For purposes of October 15, 1999this Agreement, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with term "Superior GSE Transaction Proposal" shall mean a bonafide GSE Transaction Proposal made by any person or entity (other than HKParent and Merger Sub) to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more that 50% of the voting power of the GSE Common Stock then outstanding or all or substantially all of the assets of GSE and otherwise on terms that the board of directors of GSE determines in good faith after consultation with respect (and based in part on the advice of) its independent financial advisors to any proposal that does not at such time constitute be more favorable, from a Superior Proposal as defined in (b) abovefinancial point of view, to GSE's stockholders than the Company shallmerger contemplated by this Agreement and for which financing, and shall cause its affiliates and to the Company Representatives toextent required, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.fully committed;
Appears in 2 contracts
Sources: Plan and Agreement of Merger (Gundle SLT Environmental Inc), Merger Agreement (Gundle SLT Environmental Inc)
No Solicitation. From and after the date hereof until the Expiration Date, Stockholder, insofar as Stockholder is acting in his, her or its capacity as a stockholder of the Company, shall not (a) The parties acknowledge and agree initiate, solicit, seek or knowingly encourage or support any inquiries, proposals or offers that prior constitute or may reasonably be expected to October 15lead to, 1999a Company Acquisition Proposal, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly engage or indirectly solicit, initiateparticipate in, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to knowingly facilitate, any inquiries discussions or negotiations regarding, or furnish any nonpublic information to any Person in connection with, any inquiries, proposals from any person or offers that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
, (iii) agree to or endorse any Acquisition Proposal;
(ivc) enter into any agreementletter of intent, arrangement agreement in principle or understanding other similar type of agreement relating to a Company Acquisition Proposal, or enter into any agreement or agreement in principle requiring it the Company to abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by the Merger Agreement, (d) initiate a stockholders’ vote or action by consent of the Company’s stockholders with respect to a Company Acquisition Proposal, (e) except by reason of this Agreement, or
become a member of a “group” (vwithin the meaning of Section 13(d) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HKAct) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, voting securities of the Company shallthat takes any action in support of a Company Acquisition Proposal or (f) propose or agree to do any of the foregoing. In the event that Stockholder is a corporation, and partnership, trust or other entity, it shall cause not permit any of its affiliates and the Company Representatives Subsidiaries or Affiliates to, cease nor shall it authorize any and all activitiesofficer, discussions director or negotiations as representative of such dateStockholder, or any of its Subsidiaries or Affiliates to, undertake any of the actions contemplated by this Section 7. Nothing in this Section 5.9(d) is intended to prevent, deter, 7 shall restrict any actions permitted under the Merger Agreement by Stockholder in his or prohibit her capacity as an officer or director of the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionCompany.
Appears in 2 contracts
Sources: Voting Agreement (Javelin Pharmaceuticals, Inc), Voting Agreement (Myriad Pharmaceuticals, Inc.)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999During the period from the date of this Agreement until the earlier of the Acceptance Time, the Company Effective Time and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this AgreementAgreement in accordance with its terms, the Company and its affiliates shall will not, and shall instruct the Company Representatives will cause its Subsidiaries not to:
, and will use commercially reasonable efforts to cause each controlled Affiliate and any Representative of the Company, any of its Subsidiaries or any such controlled Affiliate not to, and on becoming aware of it will use commercially reasonable efforts to stop any such person from continuing to, directly or indirectly, (i) directly or indirectly solicit, initiateinitiate or knowingly encourage, knowingly cooperate with any person regarding, or encourage knowingly facilitate (including by way of furnishing nonpublic information or assistance)material, or take any other action to facilitate, non-public information) any inquiries or proposals from any person that constituteregarding, or may that would reasonably be expected to lead to, an acquisitionany Company Competing Transaction (any of the foregoing inquiries or proposals being referred to herein as a “Company Acquisition Proposal”), (ii) participate in any discussions or negotiations regarding any Company Acquisition Proposal (but the foregoing will not prohibit the Company or any of its Representative from making a person aware or otherwise informing such person of the provisions of this Section 6.4), or (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement, other than any Acceptable Confidentiality Agreement, regarding, or that is intended to result in, or would reasonably be expected to lead to, any Company Acquisition Proposal (a “Company Acquisition Agreement”).
(b) As used in this Agreement, “Company Competing Transaction” means any of (i) a transaction, including any tender offer, exchange offer or share exchange, pursuant to which any third person or group (other than Parent or any of its Affiliates or any group of which Parent or its Affiliates is a member), or the stockholders of such third person, directly or indirectly, acquires or would acquire beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 15% or more of the outstanding shares of common stock of the Company or of the outstanding voting power of the Company (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such common stock or other securities representing such voting power), whether from the Company or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, consolidation or business combination pursuant to which any third person or group of persons (other than Parent or any of its Affiliates or any group of which Parent or its Affiliates is a member), or the stockholders of such third person or persons, beneficially owns or would beneficially own 15% or more of the outstanding shares of common stock or the outstanding voting power of the Company, or, if applicable, any surviving entity or the parent entity resulting from any such transaction, immediately upon consummation thereof, (iii) a recapitalization of the Company or any of its Subsidiaries or any transaction similar to a transaction referred to in clause (ii) above involving the Company or any of its Subsidiaries pursuant to which any third person or group of persons (other than Parent or any of its Affiliates or any group of which Parent or its Affiliates is a member), or its stockholders, beneficially owns or would beneficially own 15% or more of the outstanding shares of common stock or the outstanding voting power of the Company or such Subsidiary or, if applicable, the parent entity resulting from any such transaction immediately upon consummation thereof or (iv) any transaction pursuant to which any third person or group of persons (other than Parent or any of its Affiliates) directly or indirectly (including by way of merger, consolidation, share exchange, recapitalizationother business combination, business combination partnership, joint venture or other similar transaction involving any material portion otherwise) acquires or would acquire control of assets (including for this purpose the assets or any equity securities of, or other ownership interest in, Subsidiaries of the Company and securities of the entity surviving any merger, consolidation merger or business combination with, or any public announcement of a proposal, plan, or intention to do involving any of the foregoing by, Subsidiaries of the Company) of the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, representing 15% or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval more of the Merger by the shareholders fair market value of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of all the assets of the CompanyCompany and its Subsidiaries, but only to the extent that the Company Board or the Special Committee determines in good faithtaken as a whole, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that immediately prior to taking such action, transaction. Wherever the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK term “group” is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary used in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative it is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal used as defined in (b) above, Rule 13d-3 under the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionExchange Act.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Insite Vision Inc), Merger Agreement (Insite Vision Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates ICO agrees it shall not, and it shall instruct the Company cause its Affiliates and Subsidiaries and its and their Representatives not to:
, directly or indirectly: (i) directly or indirectly solicit, initiate, encourage, knowingly facilitate or encourage induce any inquiry with respect to, or the making, submission or announcement of, any offer or proposal to sell or otherwise dispose of all or any portion of the Assets or the assets of the Acquired Companies (including other than sales otherwise permitted by way of furnishing this Agreement) or, directly or indirectly, the Business (an "Acquisition Proposal"), (ii) except as expressly permitted in this Section 5.08, participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information or assistance)with respect to, or take any other action to facilitate, facilitate any inquiries or proposals from the making of any person proposal that constitute, constitutes or may reasonably be expected to lead to, an acquisitionany Acquisition Proposal, purchase(iii) except as expressly permitted in this Section 5.08, mergerengage in discussions with any person with respect to any Acquisition Proposal, consolidation(iv) approve any Acquisition Proposal (except in connection with a termination of this Agreement pursuant to Section 11.02(e)), share exchange, recapitalization, business combination or other (v) enter into any letter of intent or similar transaction involving any material portion of the assets document or any securities ofagreement, commitment or understanding contemplating or otherwise relating to any mergerAcquisition Proposal or a transaction contemplated thereby (except in connection with a termination of this Agreement pursuant to Section 11.02(e)). ICO shall immediately terminate, consolidation and shall cause its Affiliates and Subsidiaries and its and their Representatives to immediately terminate, all discussions or business combination withnegotiations, if any, with any third party with respect to, or any public announcement of that could reasonably be expected to lead to or contemplate the possibility of, an Acquisition Proposal. ICO shall immediately demand that each person which has heretofore executed a proposal, plan, or intention to do any of the foregoing by, the Company confidentiality agreement with ICO or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such person's consideration of a possible Acquisition Proposal to immediately return or destroy (which destruction shall be certified in writing by such transactions being referred person to herein as "Acquisition Proposals");ICO) all nonpublic information furnished by ICO or any of its Affiliates or Subsidiaries or any of its or their Representatives on or after January 1, 2002, to such person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
(iii) enter into, maintain, As promptly as practicable after receipt of any Acquisition Proposal or continue discussions any request for nonpublic information or negotiations with any person in furtherance of such inquiries or inquiry which it reasonably believes could lead to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement ICO shall prohibit the Company Board or the Special Committee from (A) furnishing information to, provide Parent with oral and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the material terms and conditions of such proposal Acquisition Proposal, request or inquiry, and the identity of the person or group making itany such Acquisition Proposal, request or inquiry and a copy of all written materials provided in connection with such Acquisition Proposal, request or inquiry. The Company also will After receipt of the Acquisition Proposal, request or inquiry, ICO shall continue to provide Parent as promptly notify HK as practicable oral and written notice setting forth all such information as is reasonably necessary to keep Parent informed in all material respects of the status and details (including material amendments or proposed material amendments) of any change such Acquisition Proposal, request or inquiry and shall promptly provide to Parent a copy of all written materials subsequently provided in connection with such Acquisition Proposal, request or modification inquiry.
(ii) ICO shall provide Parent with five Business Days prior notice (or such lesser prior notice as is provided to the members of the Board of Directors of ICO) of any meeting of the Board of Directors of ICO at which such Formal Board of Directors is reasonably expected to consider any Acquisition Proposal.
(c) If ICO receives an unsolicited, bona fide written Acquisition Proposal from a third party that the Board of Directors of ICO has in good faith concluded (following the receipt of the advice of its outside legal counsel and its financial advisor) is a Superior Proposal, ICO shall promptly provide to Parent written notice that shall state expressly (A) that it has received a Superior Proposal and (B) the identity of the party making such Superior Proposal and the material terms and conditions thereofof the Superior Proposal (the "Superior Proposal Notice") and may then take the following actions:
(i) furnish nonpublic information to the third party making such Superior Proposal, provided, that (A) concurrently with furnishing any such nonpublic information to such party, ICO gives Parent written notice of its intention to furnish nonpublic information, (B) prior to so furnishing, ICO receives from the third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf and customary standstill provisions, and (C) contemporaneously with furnishing any such nonpublic information to such third party, ICO furnishes a detailed index of such nonpublic information to Parent and copies of such nonpublic information (to the extent such nonpublic information has not been previously so furnished); and
(ii) engage in negotiations with the third party with respect to the Superior Proposal, provided, that concurrently with entering into negotiations with such third party, it gives Parent written notice of its intention to enter into negotiations with such third party.
(d) To the extent that, as For a period of October 15, 1999, the Company, any not less than five Business Days after Parent's receipt from ICO of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) aboveNotice, the Company ICO shall, and shall cause its affiliates and if requested by Parent, negotiate in good faith with Parent to revise this Agreement so that the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute Acquisition Proposal that constituted a breach of this provisionSuperior Proposal no longer constitutes a Superior Proposal.
Appears in 2 contracts
Sources: Purchase Agreement (Ico Inc), Purchase Agreement (Varco International Inc /De/)
No Solicitation. (a) The parties acknowledge Neither SuperMedia nor Dex (each, a “No-Shop Party”, and agree that prior with respect to October 15, 1999each other, the Company “Other Party”) shall, and each shall cause its respective Subsidiaries not to, and each shall direct its and its affiliates Subsidiaries’ officers, directors, employees, agents and the Company Representatives shall be permitted to take the actions proscribed in clauses representatives (b)(iincluding any investment banker, financial advisor, attorney, accountant or other retained representative) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
, directly or indirectly (i) directly or indirectly solicit, initiate, encourage or encourage facilitate, directly or indirectly (including by way of furnishing nonpublic information or assistanceinformation), or take any other action designed to facilitate, any inquiries or proposals from regarding any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidationmerger (other than the Mergers), share exchange, recapitalizationconsolidation, business combination or other similar transaction involving any material portion sale of the assets or any securities ofassets, any merger, consolidation or business combination with, or any public announcement sale of shares of capital stock (including by way of a proposaltender offer), planrestructuring, recapitalization or intention to do any of the foregoing by, the Company similar transactions involving such No-Shop Party or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (such transactions any of the foregoing inquiries or proposals being referred to herein as "an “Acquisition Proposals"Proposal”);
, (ii) enter into, maintain, or continue participate in any discussions or negotiations with any person in furtherance of such inquiries or to obtain regarding an Acquisition Proposal;
Alternative Transaction, (iii) agree except as contemplated by Section 6.13, take any action to exempt any Person from the restrictions contained in any takeover or endorse any Acquisition Proposal;
similar Law or otherwise cause such restrictions not to apply or (iv) enter into any merger agreement, arrangement letter of intent, agreement in principle, share purchase agreement or understanding requiring it to abandonother agreement regarding any Alternative Transaction. Notwithstanding the foregoing, terminate or fail to consummate the Merger or any other transaction contemplated by this AgreementBoard of Directors of a No-Shop Party shall be permitted, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval meeting of stockholders of such No-Shop Party to be held pursuant to Section 6.2, and subject to compliance with the Merger by other terms of this Section 6.12 and to first entering into a confidentiality agreement with the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information Person proposing such Acquisition Proposal on terms substantially similar to, and engaging no less favorable to such No-Shop Party than, those contained in the Confidentiality Agreement, to furnish information concerning such No-Shop Party and its Subsidiaries to the Person making such Acquisition Proposal and to consider and participate in discussions or and negotiations withwith respect to such Acquisition Proposal received by such No-Shop Party, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but if and only to the extent that the Company Board or the Special Committee determines in good faith(A) such Acquisition Proposal is an unsolicited, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior bona fide written Acquisition Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in such Acquisition Proposal did not result from a breach by such No-Shop Party of this Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so6.12, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations Board of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions Directors of such proposal No-Shop Party reasonably determines in good faith (after consultation with such No-Shop Party’s outside legal counsel and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of independent financial advisors) that (x) such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates constitutes or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect would reasonably be expected to any proposal that does not at such time constitute lead to a Superior Proposal as defined in and (by) above, failure to do so would be inconsistent with its duties under applicable Laws. Such No-Shop Party shall promptly provide or make available to the Company shall, Other Party and shall cause its affiliates and representatives any non-public information provided or made available to such other Person that was not previously provided or made available to the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionOther Party.
Appears in 2 contracts
Sources: Merger Agreement (Supermedia Inc.), Merger Agreement (DEX ONE Corp)
No Solicitation. (a) The parties acknowledge Company and agree that prior to October 15its Subsidiaries shall not, 1999, and the Company and its Subsidiaries shall use their reasonable best efforts to ensure that their respective officers, directors, employees, representatives and agents (including, but not limited to, investment bankers, attorneys and accountants) do not, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Purchaser, any of its affiliates and or representatives) concerning any proposal or offer to acquire all or a substantial part of the business or properties of the Company Representatives or any of its Subsidiaries or any capital stock of the Company or any of its Subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or similar transaction involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"), except that nothing contained in this Section 6.08 or any other provision hereof shall be prohibit the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, 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 6.08(b), withdraw or modify its position with respect to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15Offer or the Merger or approve or recommend, 1999 until the termination of this Agreementor propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Except as permitted by Section 6.08(b), the Company and its affiliates shall notshall, and shall instruct cause each of its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company Representatives not to:
(i) directly Company, any of its Subsidiaries or indirectly solicitany officer, initiatedirector, employee or affiliate of, or encourage (including by way of furnishing nonpublic information or assistance)investment banker, or take any other action to facilitateattorney, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination accountant or other similar transaction involving any material portion of the assets advisor or any securities representative of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries with parties conducted heretofore with respect to any of the foregoing.
(such transactions being referred b) Notwithstanding the foregoing, prior to herein as "Acquisition Proposals");
the later of (i) 11:59 P.M. Chicago time March 30, 1998 and (ii) enter intothe expiration of the applicable waiting periods under the HSR Act, maintainthe Company may furnish information concerning the Company and its Subsidiaries to any corporation, partnership, person or continue other entity or group pursuant to appropriate confidentiality agreements with terms substantially similar to those contained in the Confidentiality Agreement, and may negotiate and participate in discussions or and negotiations with any person in furtherance of such inquiries entity or to obtain group concerning an Acquisition Proposal;
Proposal if (iiii) agree to such entity or endorse any Acquisition Proposal;
(iv) enter into any agreementgroup, arrangement which has not been solicited by or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders on behalf of the Company nothing in this Agreement shall prohibit after the date hereof, has submitted a bona fide written proposal to the Company relating to any such transaction which the Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines concludes in good faith, after consulting with independent legal counsel a nationally recognized investment banking firm, (which may be A) is more favorable to the Company's regularly engaged stockholders (in their capacities as stockholders), from a financial point of view, than the Offer and the Merger and (B) is reasonably capable of being completed, and (ii) in the good faith opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel)counsel to the Company, that it has a fiduciary obligation the failure to furnish provide such information or access or to engage in such discussions or negotiations with such person or entity would cause the Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable law (any such proposal meeting such criteria, an Acquisition Proposal which satisfies clauses (i) and (ii) being referred to herein as a "Superior Proposal"), provided, that prior . The Company shall provide reasonable notice to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar Purchaser to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith effect that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal received an Acquisition Proposal, including its terms and conditions (but excluding the identity of the party or parties making such Acquisition Proposal, unless the terms and conditions of such proposal and Acquisition Proposal contains a purchase price that includes stock of such party or parties). At any time after 48 hours following notification to Purchaser of the Company's intent to do so (which notification shall include the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal bidder and the material terms and conditions thereof.
(dof the proposal) To and if the extent that, as Company has otherwise complied with the terms of October 15, 1999this Section 6.08(b), the Company, any Board of Directors may withdraw or modify its affiliates approval or any recommendation of the Offer and may cause the Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) to enter into an agreement with respect to a Superior Proposal, provided it shall concurrently with entering into such agreement pay or cause to be paid to Purchaser the Termination Fee (as defined below) plus any proposal that does not amount payable at such the time constitute for reimbursement of expenses pursuant to Section 8.03(b). If the Company shall have notified Purchaser of its intent to enter into an agreement with respect to a Superior Proposal as defined in (b) abovecompliance with the preceding sentence and has otherwise complied with such sentence, the Company shall, may enter into an agreement with respect to such Superior Proposal (with the bidder and shall cause its affiliates and on terms no less favorable than those specified in such notification to Purchaser) after the Company Representatives to, cease any and all activities, discussions or negotiations as expiration of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision48 hour period.
Appears in 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
No Solicitation. (a) The parties acknowledge IDB Buyer shall not, nor shall it authorize or permit any of its Affiliates (including JPI and agree New JPI) or any of its or their respective Representatives to, directly or indirectly (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (ii) adopt, or publicly propose to adopt, or allow IDB Buyer, JPI or New JPI to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement, undertaking, or understanding in connection with or relating to any Takeover Proposal, or (iii) other than with CME, Seller or their respective Representatives, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data in connection with or relating to, any Takeover Proposal. IDB Buyer shall, and IDB Buyer shall cause JPI, New JPI and its and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to October 15the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement. Notwithstanding the foregoing, 1999nothing herein shall prevent any Representative of JPI or New JPI from acting in his or her capacity as an officer or director of GFI, or taking any action in such capacity, but only in either such case as and to the Company and its affiliates and extent permitted by Section 6.5(b) of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) belowGFI Merger Agreement.
(b) From and after October 15, 1999 until the termination For purposes of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
“Takeover Proposal” means any proposal or offer for a direct or indirect (i) directly merger, binding share exchange, recapitalization, reorganization, scheme of arrangement under the United Kingdom Companies ▇▇▇ ▇▇▇▇, liquidation, dissolution, business combination or indirectly solicit, initiateconsolidation, or encourage any similar transaction, involving GFI or one or more of its Subsidiaries (including the IDB Subsidiaries), (ii) the acquisition or purchase, including by lease, exchange, mortgage, pledge, transfer or other acquisition or assumption, of 20% or more of the fair value of the assets or 20% or more of any class of equity or voting securities of (A) GFI and its Subsidiaries or (B) the IDB Subsidiaries, in each case taken as a whole and in one transaction or a series of related transactions, (iii) purchase, tender offer, exchange offer or other acquisition (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination exchange or other similar transaction involving any material portion otherwise) of Beneficial Ownership of Securities representing 20% or more of the assets voting power of GFI’ or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintainIDB Subsidiary’s Securities, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreementtransaction, arrangement or understanding requiring it combination of transactions, similar to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionforegoing; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior term “Takeover Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above ” shall not constitute a breach by include the Company of this AgreementTransactions.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Purchase Agreement (Cme Group Inc.), Purchase Agreement (GFI Group Inc.)
No Solicitation. (a) The From the date hereof through the Closing Date, the Company shall and shall cause each Subsidiary and its Subsidiaries’ officers and directors to, and each of the foregoing shall cause their respective agents, representatives, advisors or subsidiaries, to cease any discussions or negotiations with any parties acknowledge and agree (other than the Purchaser) that prior may be ongoing with respect to October 15, 1999, (A) any acquisition or purchase of assets of the Company and its affiliates and Subsidiaries other than in the ordinary course of business consistent with past practice, (B) the purchase of any equity security of the Company Representatives shall or any Subsidiary (including a self tender offer) or any security that is convertible, exchangeable or exercisable for any such equity security, (C) any merger, consolidation, business combination, sale of substantially all assets, recapitalization, Liquidation, or similar transaction involving the Company or any Subsidiary (other than a Permitted Acquisition), or (D) any other transaction the consummation of which would, or could reasonably be permitted expected to, impede, interfere with, prevent or materially delay the transactions contemplated by this Agreement or which would, or could reasonably be expected to, materially dilute the benefits to take the actions proscribed Purchasers of the transactions contemplated hereby (each of the foregoing items set forth in clauses (b)(iA) through (v) below.
(b) D), an “Alternative Transaction”). From and after October 15, 1999 until the termination of this Agreementdate hereof through the Closing Date, the Company and its affiliates shall not, shall cause each Affiliate not to and shall instruct the Company Representatives not authorize or permit any of its or any such Person’s officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative representing any such Person to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, initiate or encourage (including by way of furnishing nonpublic information or assistanceinformation), or take any other action to facilitate, any inquiries or proposals from the making of any person proposal that constitute, may lead to an Alternative Transaction or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue participate in any discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse third party regarding any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreementproposed Alternative Transaction.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Series C Preferred Stock Purchase Agreement (Euniverse Inc), Series C Preferred Stock Purchase Agreement (Marver James D)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15Until the earlier of January 8, 19992010 or the Initial Closing Date, neither the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do nor any of the foregoing byits Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their Representatives to, and the Company shall instruct, and cause each applicable Subsidiary, if any, to instruct, each such Representative not to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or the making of any inquiry, offer or proposal that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 10.8(b), (such transactions being referred i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to herein as "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 knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has expressed an intent to make, or has made, any Acquisition Proposals");
Proposal, (ii) enter into, maintainapprove any transaction under, or continue discussions or negotiations with any person in furtherance Third Party becoming an “interested stockholder” under, Section 203 of such inquiries or to obtain an Acquisition Proposal;
Delaware Law, (iii) agree to except as contemplated by Section 4.25, amend the Company Rights Agreement, redeem the Company Rights or endorse take any Acquisition Proposal;
action with respect to, or make any determination under, the Company Rights Agreement, (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, arrangement merger agreement, option agreement, joint venture agreement, partnership agreement or understanding other Contract relating to any Acquisition Proposal or enter into any agreement or agreement in principle requiring it the Company to abandon, terminate or fail to consummate the Merger transactions contemplated hereby or breach its obligations hereunder (other than a confidentiality agreement contemplated by Section 10.8(b)), or (v) resolve, propose or agree to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by any Subsidiary of the Company or Representatives of the Company or any other transaction contemplated of its Subsidiaries shall be deemed to be a breach of this Section 10.8(a) by the Company. The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or 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.
(b) Notwithstanding the foregoing provisions of Section 10.8(a), prior to the Initial Closing, the Board, directly or indirectly through any Representative, may (i) engage in negotiations or discussions with any Third Party that has made (and not withdrawn) a bona fide unsolicited Acquisition Proposal in writing after the date of this Agreement, or
that did not result from or arise out of a willful and material breach of Section 10.8(a), and that the Board believes in good faith, after consultation with its outside legal counsel and financial advisor of nationally recognized reputation, constitutes or would reasonably be expected to lead to a Superior Proposal, and (vii) authorize thereafter furnish to such Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement and containing additional provisions that expressly permit the Company Representatives to comply with the terms of this Section 10.8 (a copy of which confidentiality agreement shall be promptly and in any event with 24 hours provided for informational purposes only to the Investors), but in each case under the preceding clauses (i) and (ii), only if the Board determines in good faith, after consultation with outside legal counsel to the Board, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law.
(c) The Board shall not take any of the actions referred to in clauses (i) or (ii) of Section 10.8(b) unless the Company shall have notified the Investors in writing contemporaneously with taking such action that it is taking or intends to take such action. The Company shall notify the Investors promptly (but in no event later than 24 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party. In such notice, the Company shall identify the Third Party making, and (if applicable) the terms and conditions of, any such Acquisition Proposal, inquiry, offer, proposal or request. The Company shall keep the Investors reasonably informed, on a reasonably prompt basis, of the status and material terms of any such Acquisition Proposal, inquiry, offer, proposal or request, including (if applicable) any material amendments or proposed amendments as to price and other material terms thereof. The Company shall, subject to Applicable Law, promptly provide the Investors with any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations provided to any Third Party that was not previously provided to the Investors.
(d) Neither the Board nor any committee thereof shall (i) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (ii) fail to recommend against acceptance of any tender offer or exchange offer for the Company’s Common Stock within ten (10) Business Days after the commencement of such offer or (iii) resolve or agree to take any of the foregoing actions (any of the foregoing, an “Adverse Recommendation”). Notwithstanding the preceding sentence, at any time prior to the Initial Closing, the Board, following receipt of and on account of a Superior Proposal, may make an Adverse Recommendation, but only if the Board determines in good faith, after consultation with outside legal counsel to the Board, that the failure to take such actionaction would be inconsistent with its fiduciary duties under Applicable Law; provided, however, that prior to the approval of the Merger by the shareholders of Board shall not make an Adverse Recommendation, unless (i) the Company nothing promptly notifies the Investors in this Agreement shall prohibit writing at least three (3) Business Days before making an Adverse Recommendation (the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel“Notice Period”), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar intention to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act take such action with respect to any tender offera Superior Proposal, (ii) the Company attaches to such notice the most current version of the proposed agreement or taking any other legally required action, or any action required by the rules or regulations a detailed summary of all material terms of any self-regulating securities exchange, market such Superior Proposal (which version or other body (including, without limitation, the making of public disclosure as may summary shall be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (Bupdated on a reasonably prompt basis) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person Third Party making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
Superior Proposal, (diii) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates financial and legal advisors to, during the Notice Period, negotiate with the Investors in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if the Investors, in their discretion, propose to make such adjustments; it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including any revision in price, the Notice Period shall be extended, if applicable, for a reasonable period of time to permit the Investors to respond to such material revision (it being understood that there may be multiple extensions); and (iv) the Investors do not make, within the Notice Period, an offer that is determined by the Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the Company Representatives to, cease any and all activities, discussions or negotiations its stockholders as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionSuperior Proposal.
Appears in 2 contracts
Sources: Loan and Security Agreement (Image Entertainment Inc), Securities Purchase Agreement (Image Entertainment Inc)
No Solicitation. (a) The parties acknowledge IDB Buyer shall not, nor shall it authorize or permit any of its Affiliates (including JPI and agree New JPI) or any of its or their respective Representatives to, directly or indirectly (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (ii) adopt, or publicly propose to adopt, or allow IDB Buyer, JPI or New JPI to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement, undertaking, or understanding in connection with or relating to any Takeover Proposal, or (iii) other than with CME, Seller or their respective Representatives, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data in connection with or relating to, any Takeover Proposal. IDB Buyer shall, and IDB Buyer shall cause JPI, New JPI and its and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to October 15the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement. Notwithstanding the foregoing, 1999nothing herein shall prevent any Representative of JPI or New JPI from acting in his or her capacity as an officer or director of GFI, or taking any action in such capacity, but only in either such case as and to the Company and its affiliates and extent permitted by Section 6.5(b) of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) belowGFI Merger Agreement.
(b) From and after October 15, 1999 until the termination For purposes of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
"Takeover Proposal" means any proposal or offer for a direct or indirect (i) directly merger, binding share exchange, recapitalization, reorganization, scheme of arrangement under the United Kingdom Companies ▇▇▇ ▇▇▇▇, liquidation, dissolution, business combination or indirectly solicit, initiateconsolidation, or encourage any similar transaction, involving GFI or one or more of its Subsidiaries (including the IDB Subsidiaries), (ii) the acquisition or purchase, including by lease, exchange, mortgage, pledge, transfer or other acquisition or assumption, of 20% or more of the fair value of the assets or 20% or more of any class of equity or voting securities of (A) GFI and its Subsidiaries or (B) the IDB Subsidiaries, in each case taken as a whole and in one transaction or a series of related transactions, (iii) purchase, tender offer, exchange offer or other acquisition (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination exchange or other similar transaction involving any material portion otherwise) of Beneficial Ownership of Securities representing 20% or more of the assets voting power of GFI' or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintainIDB Subsidiary's Securities, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreementtransaction, arrangement or understanding requiring it combination of transactions, similar to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionforegoing; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a term "Superior Takeover Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above " shall not constitute a breach by include the Company of this AgreementTransactions.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Purchase Agreement (Jersey Partners Inc.), Purchase Agreement (Jersey Partners Inc.)
No Solicitation. (a) The From the date hereof through the Closing --------------- Date, the Company shall and shall cause each Subsidiary and its Subsidiaries' officers and directors to, and each of the foregoing shall cause their respective agents, representatives, advisors or subsidiaries, to cease any discussions or negotiations with any parties acknowledge and agree (other than the Purchaser) that prior may be ongoing with respect to October 15, 1999, (A) any acquisition or purchase of assets of the Company and its affiliates and Subsidiaries other than in the ordinary course of business consistent with past practice, (B) the purchase of any equity security of the Company Representatives shall or any Subsidiary (including a self tender offer) or any security that is convertible, exchangeable or exercisable for any equity security, (C) any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Subsidiary (other than a Permitted Acquisition), or (D) any other transaction the consummation of which would, or could reasonably be permitted expected to, impede, interfere with, prevent or materially delay the transactions contemplated by this Agreement or which would, or could reasonably be expected to, materially dilute the benefits to take the actions proscribed Purchaser of the transactions contemplated hereby (each of the foregoing items set forth in clauses (b)(iA) through (v) below.
(b) D), an "Alternative Transaction"). From and after October 15the date hereof through the Closing Date, 1999 until the termination of this Agreement, ----------------------- the Company and its affiliates shall not, shall cause each Affiliate not to and shall instruct the Company Representatives not authorize or permit any of its or any such Person's officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative representing any such Person to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, initiate or encourage (including by way of furnishing nonpublic information or assistanceinformation), or take any other action to facilitate, any inquiries or proposals from the making of any person proposal that constitute, may lead to an Alternative Transaction or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue participate in any discussions or negotiations with any person in furtherance third party regarding any proposed Alternative Transaction.
(b) From the date hereof through the Closing Date, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify the approval or recommendation by such inquiries Board of Directors or to obtain an Acquisition Proposal;
such committee of this Agreement, the Transaction Documents or any of the transactions contemplated hereby or thereby, (ii) approve or recommend any Alternative Transaction or (iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize cause or permit the Company Representatives or any Affiliate to take enter to any such action; providedletter of intent, however, that prior to the approval of the Merger by the shareholders of the Company nothing agreement in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination principle or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreementan Alternative Transaction.
(c) The Company will promptly notify HK In addition to the obligations of the receipt Company set forth in paragraphs (a) and (b) of this Section 8.1, the Company shall promptly advise the Purchaser orally and in writing of any Formal Acquisition Proposalrequest for information or of any proposal or any inquiry regarding any Alternative Transaction, the material terms and conditions of such request, proposal or inquiry and the identity of the person Person making itsuch request, proposal or inquiry. The Company also will promptly notify HK keep the Purchaser fully informed of any change to the status and details (including amendments or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(dproposed amendments) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionrequest, proposal or inquiry.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Apollo Investment Fund Iv Lp), Securities Purchase Agreement (Rare Medium Group Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999Except as expressly permitted by this Section 4.02, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates Subsidiaries shall not, and the Company shall instruct the Company and cause its and their respective Representatives not to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance)knowingly encourage, or take any other action to facilitateknowingly facilitate any inquiries regarding, or the making or submission of, any inquiries Takeover Proposal or proposals from any proposal or offer that may reasonably be expected to lead to any Takeover Proposal, (ii) engage in, participate in or otherwise continue any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to knowingly facilitate the making of, any proposal or offer that constituteconstitutes, or may reasonably be expected to lead to, an acquisitionany Takeover Proposal or (iii) enter into or agree to enter into any letter of intent, purchasememorandum of understanding, mergeragreement in principle, consolidationmerger agreement, share exchange, recapitalization, business combination acquisition agreement or other similar transaction involving agreement related to any material portion of Takeover Proposal, other than any Acceptable Confidentiality Agreement (an “Acquisition Agreement”). The Company and its Subsidiaries shall, and the assets or Company shall instruct and cause its and their respective Representatives to, immediately cease and cause to be terminated any securities of, discussions and negotiations with any merger, consolidation or business combination withperson conducted heretofore with respect to any Takeover Proposal, or proposal or offer that could reasonably be expected to lead to any public announcement Takeover Proposal. The Company will promptly request from each person that has executed a confidentiality agreement in connection with its consideration of making a proposal, plan, Takeover Proposal to return or intention to do any destroy (as provided in the terms of the foregoing by, such confidentiality agreement) all confidential information concerning the Company or any of its Subsidiaries (and promptly terminate all physical and electronic data access previously granted to such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreementperson.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Merger Agreement (Covance Inc), Merger Agreement (Laboratory Corp of America Holdings)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 the date hereof until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals"); except that none of the foregoing restrictions shall apply with respect to persons to whom the Company or a Company Representative has already provided, within the three months prior to the date of this Agreement, non-public written information about the Company to facilitate an Acquisition Proposal;
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal; except that none of the foregoing restrictions shall apply with respect to persons to whom the Company or a Company Representative has already provided, within the three months prior to the date of this Agreement, non-public written information about the Company to facilitate an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionaction except to the extent that such action may be taken under clause (i) or (ii) of this Section 5.10(a); provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or a special committee of the Company Board (the "Special Committee Committee") from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination offer or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faithfaith by a majority vote, after consulting with based upon advice from independent legal counsel (which who may be the Company's regularly engaged outside legal counsel), a description of which is provided to ICS, that it has a fiduciary obligation failure to furnish such information or engage in such discussions or negotiations with such person or entity would be reasonably likely to constitute a breach of the fiduciary duties to shareholders of the Company Board or the Special Committee under applicable law (assuming for such purpose that fiduciary duties are owed only to shareholders), and such a proposal is, in the opinion of the Investment Banks more favorable to the Company and the shareholders of the Company from a financial point of view then than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions of such transactions proposed by ICS in response to such Acquisition Proposal) (any such proposal meeting Acquisition Proposal satisfying such criteria, a "Superior ProposalHigher Offer"), providedprovided that, that prior to taking such actionaccepting the Higher Offer, the Company Board notifies HK ICS of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 5.13 hereof if the Company Board or the Special CommitteeBoard, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a such action is consistent with the Company Board's fiduciary obligation duties to do soshareholders under applicable law, provided that HK ICS is given two five days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(cb) The Company will promptly notify HK ICS of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and and, if not prohibited by the terms of such proposal, the identity of the person making it. The Company also will promptly have no obligation to notify HK ICS of any change to or modification of such Formal Acquisition Proposal and or the terms and conditions thereof, but shall provide ICS with a reasonable opportunity to increase the Merger Consideration in response to such Acquisition Proposal.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Microclock Inc)
No Solicitation. (a) The parties acknowledge and agree that prior Subject to October 15, 1999Section 7.11(b), the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From agrees that from and after October 15, 1999 until the termination date of this Agreement, it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all discussions and negotiations with any other Person (other than Parent 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 the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company and its affiliates Company Subsidiaries, (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 in respect of a proposed Alternative Proposal (such agreement, a “Standstill Agreement”). From and after the date of this Agreement, subject to Section 7.11(b) and Section 9.3(b), the Company shall not, and directly or indirectly, nor shall instruct the Company Representatives not authorize or permit any Company Subsidiary, any of its or their respective officers or directors, or any investment banker, financial advisor, attorney, accountant, agent, employee or authorized representative (a “Representative”) of the Company or any Company Subsidiary to:
, (i) directly or indirectly solicit, initiate, initiate or knowingly and intentionally encourage or facilitate (including by way of furnishing nonpublic information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to an Alternative Proposal, (ii) except for confidentiality agreements entered into pursuant to the proviso to the first sentence of clause (b) of this Section 7.11 or a definitive agreement entered into or to be entered into concurrently with a termination of this Agreement by the Company pursuant to Section 9.3(b), approve or enter into a letter of intent, memorandum of understanding or other Contract with any Person, other than Parent and Merger Sub, for, constituting or otherwise relating to an Alternative Proposal, (iii) provide or cause to be provided any information or assistance)data relating to the Company or any Company Subsidiary in connection with, or in response to, any Alternative Proposal by any Person, or (iv) terminate, amend, waive or permit the waiver of any voting restriction contained in the organizational or governing documents of the Company, or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion contemplated by paragraph (1) of Article Fourteenth of the assets Company’s certificate of incorporation or by paragraph (a)(1) of Section 203 of the DGCL. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any officer or director of the Company takes any action or any securities of, officer or director of any merger, consolidation or business combination with, Company Subsidiary or any public announcement other Representative of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations Company Subsidiary with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders knowledge of the Company nothing takes any action, in this Agreement shall prohibit either case that, if taken by the Company Board would be a breach of this Section 7.11, the taking of such action by such officer, director or other Representative shall be deemed to constitute a breach of this Section 7.11 by the Special Committee from Company.
(Ab) furnishing Notwithstanding the provisions of Section 7.11(a), the Company and its Representatives shall be entitled, prior to obtaining the Required Company Vote, to furnish information regarding the Company and any Company Subsidiary to, and engaging or engage in discussions or negotiations with, any person or entity that makes Person in response to an unsolicited writtenunsolicited, bona fide fide, written third party proposal with respect to acquire an Alternative Proposal that is submitted to the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets by such Person (for so long as such Alternative Proposal has not been withdrawn) if (i) none of the Company, but only the Representatives of the Company, the Company Subsidiaries and the Representatives of the Company Subsidiaries shall have breached the provisions set forth in this Section 7.11 in any material respect with respect to such Person, and (ii) the extent Board of the Company shall have determined, in its good faith judgment, after consultation with the Company’s financial advisor and outside legal counsel, that the proposal constitutes or is reasonably likely to lead to a Superior Proposal (as hereinafter defined); provided that the Company Board may not enter into negotiations or discussions or supply any information in connection with an Alternative Proposal without entering into a confidentiality agreement at least as restrictive in all matters as the Special Committee determines Confidentiality Agreement, dated as of July 2, 2009 between the Company and Parent (the “Confidentiality Agreement”) except that such confidentiality agreement may allow such third party to make Alternative Proposals to the Company in good faith, connection with the negotiations and discussions permitted by this Section 7.11(b). Parent shall be entitled to receive an executed copy of any such confidentiality agreement and notification of the identity of such Person immediately after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in ’s entering into such discussions or negotiations with or furnishing information to the Person making such person Alternative Proposal or entity (its Representatives. The Company shall promptly provide or make available to Parent any non-public information concerning the Company and any Company Subsidiary that is provided to the Person making such Alternative Proposal or its Representatives which was not previously provided or made available to Parent. The Company agrees that it shall notify Parent promptly if any inquiry, contact or proposal related to an Alternative Proposal is received by, any such proposal meeting information is requested from, or any such criteriadiscussions or negotiations are sought to be initiated or continued with, a "Superior Proposal"), provided, that prior to taking such actionthe Company, the Company notifies HK Subsidiaries, any of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality AgreementRepresentatives, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if any Representatives of the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do soSubsidiaries, and (C) disclosing to thereafter shall keep Parent informed in writing, on a reasonably current basis, regarding the Company's shareholders a position contemplated by Rules 14d-9 status of any such inquiry, contact or proposal and the status of any such negotiations or discussions. Nothing contained in this Agreement shall prevent the Board of the Company from complying with Rule 14e-2 promulgated under the Exchange Act with respect to an Alternative Proposal or from making any tender offersimilar disclosure, provided, however, that subject to Section 7.11(c), neither the Company nor the Board of the Company shall withdraw or modify, or taking any other legally required actionpropose publicly to withdraw or modify, its position with respect to this Agreement or in connection with the Merger, or any action required by the rules or regulations of any self-regulating securities exchange, market or approve (other body (including, without limitation, the making of public disclosure as may be necessary or advisable than in connection with a termination under applicable securities lawsSection 9.3(b); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreementrecommend, or propose publicly to approve or recommend, an Alternative Proposal.
(c) The Company will promptly notify HK Board of the Company shall not withdraw, modify or qualify in a manner adverse to Parent or Merger Sub, or resolve to or publicly propose to withdraw, amend, modify or qualify in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or fail to make the Company Board Recommendation (any such action, a “Change in Recommendation”). Notwithstanding the immediately preceding sentence, prior to receipt of any Formal Acquisition Proposalthe Required Company Vote, the terms Board of the Company may effect a Change in Recommendation if (i) the Board of the Company determines in good faith, after consultation with the Company’s outside legal counsel and conditions financial advisors, that its failure to take such action would be reasonably expected to be inconsistent with its fiduciary duties under applicable Laws, (ii) the Board of the Company provides Parent with at least three (3) Business Days’ advance written notice of its intention to make a Change in Recommendation and specifying the material events giving rise thereto, and (iii) during such three (3) Business Day period, the Company and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives to amend this Agreement so as to enable the Board of the Company to proceed with its recommendation of this Agreement and at the end of such proposal and three (3) Business Day period, the identity Board of the person making it. The Company also will promptly notify HK of maintains its determination (after taking into account any change agreed modifications to or modification of such Formal Acquisition Proposal and the terms and conditions thereofof this Agreement).
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing As used in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Baker Hughes Inc), Merger Agreement (Bj Services Co)
No Solicitation. Until the earlier of (ax) The parties acknowledge the termination of this Agreement pursuant to Section 10.1 and agree that prior (y) the Final Closing Date (the period from the date of this Agreement until such earlier date is referred to October 15herein as, 1999, the "EXCLUSIVITY PERIOD"):
(i) neither the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses nor any of their respective subsidiaries (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreementcollectively, the Company "RESTRICTED PARTIES" and its affiliates shall noteach a "RESTRICTED PARTY") shall, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicitindirectly, initiate, solicit or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from the making of any person proposal that constituteconstitutes, or may would reasonably be expected to lead toresult in, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination witha Competing Transaction (as defined below), or any public announcement of a proposal, plan, enter into or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, maintain or continue discussions or negotiations negotiate with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) a Competing Transaction, or agree to or endorse any Acquisition Proposal;
(iv) enter into any agreementCompeting Transaction, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives any of their respective officers, directors, employees, consultants or agents or any investment banker, financial advisor, attorney, accountant or other representative retained by any Restricted Person to take any such action; providedand (ii) the Company shall notify ABRY and Sandler in writing (as promptly as practicable, howeverbut in any event, that prior within two days) if any written or oral request for information or proposal relating to a Competing Transaction is made and shall keep ABRY and Sandler promptly advised of all such requests and proposals, and shall provide ABRY and Sandler with a copy of any such written requests or proposals and a summary of all oral proposals or requests. As used herein, the approval term "COMPETING TRANSACTION" shall mean the offer or sale of the Merger by the shareholders equity or equity-linked securities of the Company nothing in this Agreement shall prohibit to a third party other than (i) the Purchasers or (ii) between the Initial Closing Date and the Final Closing Date, other stockholders of the Company Board so long as the offer or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal sale to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or such other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that stockholders does not at such time constitute a Superior Proposal as defined include, individually or in (b) abovethe aggregate, the Company shall, more than 5,000 shares of Series B Preferred Stock and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision160,000 Warrants.
Appears in 2 contracts
Sources: Series B Convertible Preferred Stock and Warrant Purchase Agreement (Penton Media Inc), Series B Convertible Preferred Stock and Warrant Purchase Agreement (Sandler Capital Management)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999During the Pre-Closing Period, the Company and its affiliates shall not (and the Company Representatives shall be permitted to take cause the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Company’s Representatives not to:
) solicit or encourage the initiation or submission of interest, offers, inquiries or proposals (or consider or entertain any of the foregoing) from any Person (including, without limitation, by way of providing any non-public information concerning the Company, its business or assets to any Person or otherwise), initiate or participate in any negotiations or discussions, or enter into, accept or authorize any agreement or agreement in principle, or announce any intention to do any of the foregoing, with respect to any expression of interest, offer, proposal to acquire, purchase, license, or lease (i) directly all or indirectly solicita substantial portion of the Company’s business or assets (including, initiate, or encourage (including by way of furnishing nonpublic information or assistancewithout limitation the Company Intellectual Property), or take any (ii) the Company’s capital stock or other action to facilitatesecurities, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, in each case whether by stock purchase, merger, consolidation, share exchangecombination, reorganization, recapitalization, business combination purchase of assets, tender offer, lease, license or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do otherwise (any of the foregoing byforegoing, a “Competing Transaction”). The Company shall, and the Company shall cause its Representatives to, immediately discontinue any ongoing discussions or negotiations (other than any ongoing discussions with Parent) relating to a possible Competing Transaction, and shall promptly provide Parent with an oral and a written notice of any expression of interest, proposal or offer relating to a possible Competing Transaction that is received by the Company or by any of its Subsidiaries (the Company’s Representatives from any person, which notice shall contain the nature of the proposal proposed and the material terms of the proposal and include copies of any such transactions being referred to herein as "Acquisition Proposals");notice, inquiry or proposal.
(iib) enter intoNeither the board of directors of the Company nor any committee thereof shall withdraw, maintainamend or modify, or continue discussions propose or negotiations with any person in furtherance of such inquiries resolve to withdraw, amend or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate modify the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionRecommendation; provided, however, that prior to the approval receipt of the Merger by Requisite Vote the shareholders board of directors of the Company nothing in this Agreement shall prohibit may withdraw, amend or modify the Recommendation, and may make any statement required by applicable laws, if (x) the Company Board or receives an unsolicited, written proposal for a Competing Transaction that the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire board of directors of the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent having taken into account the advice of the Company’s outside legal counsel (which may and its independent financial advisors, is reasonably likely to result in a Superior Proposal that is reasonably likely to be consummated by the Company's regularly engaged , (y) the board of directors of the Company determines in good faith, upon written advice of outside legal counsel), that it has a change in the Recommendation is necessary in order to comply with its fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity duties under the DGCL, and (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, z) the Company notifies HK shall have complied with the notice requirement set forth in Section 6.4(a) and provided Parent with no less than five (5) business days’ notice of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar any contemplated withdrawal, amendment or modification to the Confidentiality AgreementRecommendation, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if during which time the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines and Parent shall negotiate in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing regarding any changes to the Company's shareholders a position terms of the Transaction contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as hereby that may be necessary or advisable under applicable securities laws); and, provided further, proposed by Parent such that notwithstanding anything the Competing Transaction would no longer be reasonably likely to the contrary result in a Superior Proposal. For purposes of this Agreement, a “Superior Proposal” shall mean any bona fide proposal for a Competing Transaction that is on terms that the board of directors of the Company Board's or the Special Committee's exercise has determined in good faith, upon written advice of its rights under clause (A)financial advisor and outside legal counsel and after taking into account all legal, (B) or (C) above shall not constitute financial, regulatory and other aspects of the proposal, including the financing terms thereof is superior from a breach financial point of view to the transactions contemplated by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
No Solicitation. (a) The parties acknowledge and agree that prior Until the earlier to October 15, 1999, occur of the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Effective Time or the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not toAgreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize or permit any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent, Merger Sub and Merger LLC), (A) solicit, initiate, make, knowingly facilitate or knowingly encourage (including by way of furnishing nonpublic information any inquiries, proposals or assistance), or take any other action to facilitate, any inquiries or proposals from any person offers that constitute, or may that would reasonably be expected to lead to, an acquisitionAcquisition Proposal, purchase(B) engage in, mergercontinue or otherwise participate in any discussions or negotiations with any Third Party regarding, consolidationfurnish to any Third Party information or provide to any Third Party access to the businesses, share exchangeproperties, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement personnel of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintainSubsidiaries, or continue discussions or negotiations otherwise cooperate in any way with any person Third Party, relating to, in furtherance connection with or for the purpose of such inquiries encouraging or to obtain facilitating, an Acquisition Proposal;
, or (iii) agree to or endorse any Acquisition Proposal;
(ivC) enter into any letter of intent, agreement, arrangement Contract, commitment or understanding agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement to the extent permitted by Section 5.3(b)) or enter into any letter of intent, agreement, Contract, commitment or agreement in principle requiring it or that would require the Company to modify, delay, abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this Agreement, or; and
(vii) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, (A) immediately cease and terminate any existing solicitation, encouragement, discussion, negotiation or communication with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal and (B) use commercially reasonable efforts to cause any such Third Party (and its Representatives) in possession of confidential information about any Acquired Corporation to return or destroy all such information. Any violation of this Section 5.3 by any of the Company’s Subsidiaries or any Representatives of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company.
(b) Notwithstanding the provisions of Section 5.3(a), if, at any time prior to the time the Stockholder Approval is obtained, (i) the Company receives a bona fide written Acquisition Proposal, (ii) such Acquisition Proposal did not result from a breach of Section 5.3(a), (iii) the Board of Directors of the Company reasonably determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal and (iv) the Board of Directors of the Company reasonably determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failing to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, then the Company may, prior to obtaining the Stockholder Approval, (A) furnish information and data with respect to the Company and the Company Subsidiaries to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel of the Company and its Subsidiaries, and (B) enter into, maintain and participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations; provided, however, that the Company (1) shall not, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives not to, furnish any information or data concerning the Company or the Company Subsidiaries to such Third Party except pursuant to an Acceptable Confidentiality Agreement, and (2) shall, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, cease concurrently with the time such information or data is provided or made accessible to such Third Party, provide to Parent any information or data concerning the Company or the Company Subsidiaries or access provided to such Third Party which was not previously provided to Parent.
(c) From and after the date of this Agreement, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) orally and in writing notify Parent of any inquiries, proposals or offers received by, any information requested from, or any negotiations or discussions sought to be initiated or continued with, the Company, any of its Subsidiaries or any Representatives of the Company or any of its Subsidiaries, in each case, in connection with, or which could reasonably be expected to lead to, an Acquisition Proposal, which notification shall identify the name of the Third Party making such inquiry, proposal or request or seeking such negotiations or discussions and the material terms and conditions of such inquiry, proposal or request and include copies of all activitieswritten materials provided to the Company, its Subsidiaries or any Representatives of the Company or its Subsidiaries that describe any terms and conditions of any inquiry, proposal or request (and any subsequent changes to such terms and conditions). The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developments, discussions or negotiations as regarding any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration), including by providing a copy of documentation relating thereto that is exchanged between the Third Party (or its Representatives) making such date. Acquisition Proposal and the Company (or its Subsidiaries or Representatives of the Company or its Subsidiaries) within twenty-four (24) hours after the receipt thereof.
(d) The Company agrees not to release or permit the release of any Third Party from, or to permit any Third Party to benefit from any waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Company or any Company Subsidiary is a party.
(e) Nothing contained in this Section 5.9(d) is intended to prevent, deter, 5.3 or Section 5.4 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9 and/or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Board or of Directors of the Special Committee from taking any action permitted by Section 5.9(b) above and Company, after consultation with outside legal counsel, the taking failure to do so would be reasonably likely to cause the Board of Directors of the Company to violate its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that any such action disclosure (other than issuance by the Company of a “stop, look and listen communication” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Board of Directors of the Company with respect to this Agreement or an Acquisition Proposal shall be deemed to be an Adverse Change Recommendation unless the Board of Directors of the Company, in connection with such communication, publicly states that its recommendation with respect to this Agreement has not constitute a breach changed or refers to the prior recommendation of the Company’s Board of Directors with respect to this provisionAgreement, without disclosing any Adverse Change Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Quad/Graphics, Inc.), Merger Agreement (COURIER Corp)
No Solicitation. (a) The parties acknowledge Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and agree that prior to October 15, 1999continuing until 11:59 p.m. (Eastern time) on the 45th calendar day after the date of this Agreement (the “Go-Shop Period”), the Company and its affiliates and the Company Representatives Subsidiaries and their respective officers, directors, employees, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (any of the foregoing, a “Representative”) shall be permitted have the right to: (i) initiate, solicit and encourage any inquiry or the making of any proposals or offers that constitute Acquisition Proposals, including by way of providing access to take non-public information to any Person pursuant to an Acceptable Confidentiality Agreement; provided that the actions proscribed Company shall promptly (and in clauses any event within 24 hours) disclose or make available to Parent all information concerning the Company or any of the Company Subsidiaries that the Company provides to any Person given such access that was not previously made available to Parent, and (b)(iii) through (v) belowengage or enter into, continue or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals.
(b) From Except as expressly permitted by this Section 6.3 and except as may relate to any Person, group of Persons or group that includes any Person or group of Persons from whom the Company has received during the Go-Shop Period a written Acquisition Proposal that the Board of Directors of the Company or any committee thereof determines in good faith (after October 15considering the recommendation of the Special Committee and consulting with the Company’s financial advisors and outside legal counsel) constitutes or could reasonably be expected to result in a Superior Proposal (any such Person or group of Persons, 1999 an “Excluded Party”), neither the Company nor any of the Company Subsidiaries may, and the Company and the Company Subsidiaries shall direct and cause their respective Representatives, not to, at 12:00 a.m. (Eastern Time) on the 46th calendar day after the date of this Agreement (the “No-Shop Period Start Date”) and thereafter until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with Article VIII, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) continue any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and (ii) directly or indirectly initiate, solicit, initiate, knowingly encourage or encourage knowingly facilitate (including by way of furnishing nonpublic information non-public information) any inquiry or assistance)the making or submission of any proposal that constitutes, or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may could reasonably be expected to lead to, an acquisitionAcquisition Proposal for the Company, purchase, merger, consolidation, share exchange, recapitalization, business combination (iii) participate or other similar transaction involving any material portion of the assets engage in discussions or any securities of, any merger, consolidation or business combination negotiations with, or disclose any non-public announcement of a proposal, plan, information or intention data relating to do any of the foregoing by, the Company or any of its the Company Subsidiaries (such transactions being referred or afford access to herein as "the properties, books or records of the Company or any of the Company Subsidiaries to any person that has made an Acquisition Proposals");
(ii) enter into, maintain, Proposal for the Company or continue discussions or negotiations with to any person in furtherance contemplation of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to Proposal for the Company, or endorse any Acquisition Proposal;
(iv) accept an Acquisition Proposal for the Company or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal for the Company (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.3) (any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if this clause (iv) (other than an Acceptable Confidentiality Agreement), an “Acquisition Agreement”). Any violation of any of the foregoing restrictions by any Company Board Subsidiary or the Special Committee, after consultation with independent legal counsel (who may be by any Representative shall constitute a breach of this Agreement by the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding . Notwithstanding anything to the contrary in this Agreement, the Company Board's and the Company Board of Directors may take any action described in clause (iii) or (iv) of this Section 6.3(a) with respect to a third party if at any time after the execution of this Agreement and prior to obtaining the Company Stockholder Approval (w) the Company receives a written Acquisition Proposal for the Company from that third party (and an Acquisition Proposal for the Company from that third party was not during that time period initiated, solicited, knowingly encouraged or knowingly facilitated in violation of this Section 6.3 by the Company, by any Company Subsidiary or any Representative), and (x) the Company Board of Directors determines in good faith (after considering the recommendation of the Special Committee and consulting with the Company’s financial advisors and outside legal counsel) that such proposal constitutes or could reasonably be expected to result in a Superior Proposal, but the Company may not deliver any information to that third party without entering into an Acceptable Confidentiality Agreement, and (y) the Company has previously disclosed or promptly (and in any event within 24 hours) discloses or makes available the same information, if any, to Parent as the Company makes available to that third party. Nothing contained in this Section 6.3 shall prohibit the Company or the Special Committee's exercise Company Board of its rights Directors from disclosing to Company Stockholders a position contemplated by Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under clause the Exchange Act if the Company shall have, to the extent reasonably practicable, provided Parent with a reasonable opportunity in advance to review and comment on any such disclosure and, in the case of any such disclosure, the Company Board of Directors determines in good faith, after consulting with outside legal counsel, that either (A), ) failure to make such disclosure would be inconsistent with its fiduciary duties to the Company Stockholders or (B) such disclosure is required by applicable law or (C) above shall not constitute a breach by the rules of any applicable national securities exchange; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, that is not coupled with an express rejection of any applicable Acquisition Proposal for the Company or an express reaffirmation of this Agreementits recommendation to its stockholders in favor of the Merger shall be deemed to be a Company Recommendation Change.
(c) The Except as otherwise expressly provided for herein, (i) neither the Company will promptly notify HK Board of Directors nor any committee thereof may directly or indirectly (A) withdraw (or amend or modify in a manner adverse to Parent), or propose publicly to withdraw (or amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board of Directors or any such committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal for the Company (any action described in this Section 6.3(b)(i)-(ii) being referred to as a “Company Recommendation Change”) or (ii) neither the Company nor any of the receipt Company Subsidiaries may execute or enter into an Acquisition Agreement. Notwithstanding the foregoing or Section 6.3(e), at any time prior to obtaining the Company Stockholder Approval, and subject to the Company’s compliance at all times with the provisions of any Formal Acquisition this Section 6.3 and Section 6.6, the Company Board of Directors may (v) in response to a Superior Proposal, make a Company Recommendation Change and enter into an Acquisition Agreement but only so long as the Company terminates this Agreement pursuant to, and concurrently complies with all the provisions of, Sections 8.1(d)(ii) and 8.3 and (w) make a Company Recommendation Change in response to an Intervening Event if the Company Board of Directors concludes in good faith (after considering the recommendation of the Special Committee and consulting with the Company’s outside legal counsel) that the failure to take such action would breach its fiduciary duties under applicable law. The term “Intervening Event” means, with respect to the Company, a material event or circumstance that was not known or reasonably foreseeable to the board of directors of the Company on the date of this Agreement (or if known, the consequences of which are not known to or reasonably foreseeable by such board of directors as of the date hereof), which event or circumstance, or any material consequences thereof, becomes known to the board of directors of the Company prior to the time at which the Company receives the Company Stockholder Approval; provided, however, that in no event shall the receipt, existence or terms of an Acquisition Proposal for the Company, or any consequence thereto, constitute, by itself, an Intervening Event. However, the Company Board of Directors shall not be entitled to exercise its right to make a Company Recommendation Change unless the Company provides written notice to Parent (a “Company Notice”), at least four business days before taking such action, of its intention to do so and the Company otherwise complies with this Section 6.3(b). A Company Notice shall (i) if the Company Board of Directors intends to make a Company Recommendation Change in response to an Acquisition Proposal for the Company that constitutes a Superior Proposal, specify the material terms and conditions of such proposal that Superior Proposal and identify the identity person or group making that Superior Proposal, or (ii) if the Company Board of Directors intends to make a Company Recommendation Change in response to an Intervening Event, include a description of the person making itIntervening Event. The Company also will promptly notify HK Board of Directors shall not be entitled to exercise its right to make a Company Recommendation Change under clause (v) above and enter into an Acquisition Agreement in response to a Superior Proposal (x) until four business days after the Company provides a Company Notice to Parent and (y) if during that four business day period, Parent proposes any change alternative transaction (including any modifications to or modification the terms of such Formal Acquisition Proposal this Agreement), unless the Company Board of Directors determines in good faith (after considering the recommendation of the Special Committee and consulting with the financial advisors and outside legal counsel for the Company Board of Directors, and taking into account all financial, legal, and regulatory terms and conditions thereof.
(dof that alternative transaction proposal) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative that such alternative transaction proposal is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute least as favorable to the Company Stockholders as the Superior Proposal (it being understood that any change in the financial or other material terms of a Superior Proposal as defined in response to any alternative transaction proposal (bincluding any modifications to the terms of this Agreement) aboveby Parent shall require a new Company Notice and a new four business day period under this Section 6.3(b)). If requested by Parent, the Company shallshall engage in good faith negotiations with Parent, and shall cause its affiliates and during the four business day period after Parent’s receipt of a Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit Notice specifying that the Company Board of Directors intends to make a Company Recommendation Change in response to an Intervening Event or a Superior Proposal, to amend this Agreement in such a manner such that the Special Committee from taking any action permitted failure by Section 5.9(b) above and the taking Company Board of any Directors to make a Company Recommendation Change would no longer cause such action shall not constitute a breach of this provisionboard to be inconsistent with its fiduciary duties under applicable law.
Appears in 2 contracts
Sources: Merger Agreement (ARBINET Corp), Merger Agreement (Primus Telecommunications Group Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999During the Interim Period, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct cause the Company Company’s Subsidiaries not to, and shall direct their respective Representatives not to:
, directly or indirectly, other than as contemplated by this Agreement: (i) directly or indirectly solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action respond to facilitate, any inquiries or proposals from any person that constituteby, or may provide any information to, any Person (other than the SPAC and its Representatives) concerning any merger, consolidation, sale of ownership interests and/or material assets, recapitalization or similar transaction of, by or involving any Group Company, New PubCo or Merger Sub (each, a “Company Business Combination”); (ii) enter into any agreement regarding, or cooperate in any way that would otherwise reasonably be expected to lead toto a Company Business Combination; or (iii) commence, an acquisitioncontinue or renew any due diligence investigation regarding a Company Business Combination, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving in each case provided that the provisions of this Section 7.11(a) shall not in any material portion way restrict (x) the implementation of the assets VEON Pre-Closing Steps; or (y) any securities of, any merger, consolidation actions expressly permitted to be taken by this Agreement or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itTransaction Documents. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates the Company’s Subsidiaries to, and the Company shall cause their respective Representatives to, immediately cease any and all activities, existing discussions or negotiations as with any Person (other than the SPAC and its Representatives) with respect to any Company Business Combination.
(b) During the Interim Period, the SPAC shall not, and shall cause the Sponsor not to, and shall direct its Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company Parties and their respective Representatives) concerning any merger, consolidation, purchase of ownership interests or assets, recapitalization or similar business combination transaction of, by or involving the SPAC (each, a “SPAC Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a SPAC Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a SPAC Business Combination. The SPAC shall, and shall cause its Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any SPAC Business Combination.
(c) Each Party shall promptly (and in no event later than twenty-four (24) hours after becoming aware of such dateinquiry, proposal, offer or submission) notify the other Parties if it or, to its knowledge, any of its or its Representatives receives any inquiry, proposal, offer or submission with respect to a Company Business Combination or SPAC Business Combination, as applicable, after the execution and delivery of this Agreement. Nothing in this Section 5.9(d) is intended If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to preventa Company Business Combination or SPAC Business Combination, deteras applicable, or prohibit such Party shall keep the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking other Parties reasonably informed of any material developments with respect to such action shall not constitute inquiry, proposal, offer or submission. Notwithstanding anything to the contrary, any Party may respond to any unsolicited proposal regarding a breach Company Business Combination or SPAC Business Combination by stating only that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide any information related to such Party or any of this provisionits Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning a Company Business Combination or SPAC Business Combination, as applicable.
Appears in 2 contracts
Sources: Business Combination Agreement (Cohen Circle Acquisition Corp. I), Business Combination Agreement (Cohen Circle Acquisition Corp. I)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, Neither the Company and its affiliates and nor any of the Company Representatives Subsidiar ies shall, nor shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15it or any of Company Subsidiaries authorize or permit any of their respective directors, 1999 until the termination of this Agreementofficers, the Company and its affiliates shall notemployees, and shall instruct the Company Representatives not investment bankers, attorneys or other agents or representatives, directly or indirectly to:
, (i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), ) or take any other action to facilitate, any inquiries inquiry or proposals from the making of any person that constituteproposal which constitutes, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any acquisition or other similar transaction involving any material portion purchase of the a substantial amount of assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing byequity interest in, the Company or any of its Subsidiaries or any tender offer (such including a self tender offer) or exchange offer, merger, consolidation, business combination, sale of substantially all assets, sale of securities, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries (other than the transactions being referred contemplated by this Agreement) or any other material corporate transaction the consummation of which would or could reasonably be expected to herein as impede, interfere with, prevent or materially delay the Merger (collectively, "Acquisition ProposalsTRANSACTION PROPOSALS");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
Transaction Proposal or (ivii) propose, enter into or participate in any agreementdiscussions or negotiations regarding any of the foregoing, arrangement or understanding requiring it furnish to abandonany other Person any information with respect to its business, terminate properties or fail to consummate the Merger assets or any of the foregoing, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other transaction contemplated by this Agreement, or
(v) authorize Person to do or permit seek any of the Company Representatives to take any such actionforegoing; provided, however, that the foregoing clauses (i) and (ii) shall not prohibit the Company from, prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from Stockholders Meeting (A) furnishing information topursuant to an appropriate confidentiality letter concerning the Company and its businesses, and properties or assets to a third party which has made an unsolicited Qualified Transaction Proposal (as defined below), (B) engaging in discussions or negotiations with, any person or entity that makes with such a third party which has made an unsolicited writtenQualified Transaction Proposal or (C) following receipt of an unsolicited Qualified Transaction Proposal, bona fide proposal taking and disclosing to acquire its shareholders a position with respect to such Qualified Transaction Proposal, but in each case referred to in the foregoing clauses (A) through (C) only after the Board of Directors of the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines concludes in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has following receipt of a fiduciary obligation written opinion addressed to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.outside
Appears in 2 contracts
Sources: Merger Agreement (PLD Telekom Inc), Merger Agreement (PLD Telekom Inc)
No Solicitation. (a) The parties acknowledge Each of JPI, New JPI and agree each Signing Stockholder shall not, nor shall they authorize or permit any of their respective Affiliates or any of their or their respective Affiliates’ respective Representatives to, directly or indirectly (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (ii) adopt, or publicly propose to adopt, or allow JPI or New JPI to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement, undertaking, or understanding in connection with or relating to any Takeover Proposal, or (iii) other than with CME, Merger Sub 1, Merger Sub 2 or their respective Representatives, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data in connection with or relating to, any Takeover Proposal. Each of JPI, New JPI and each Signing Stockholder shall, and shall cause their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to October 15the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement. Notwithstanding the foregoing, 1999nothing herein shall prevent any Representative of JPI or New JPI or any Signing Stockholder from acting in his or her capacity as an officer or director of GFI, or taking any action in such capacity, but only in either such case as and to the Company and its affiliates and extent permitted by Section 6.5(b) of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) belowGFI Merger Agreement.
(b) From and after October 15, 1999 until the termination For purposes of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
“Takeover Proposal” means any proposal or offer for a direct or indirect (i) directly merger, binding share exchange, recapitalization, reorganization, scheme of arrangement under the United Kingdom Companies ▇▇▇ ▇▇▇▇, liquidation, dissolution, business combination or indirectly solicit, initiateconsolidation, or encourage any similar transaction, involving GFI or one or more of its Subsidiaries, JPI or New JPI, (ii) the acquisition or purchase, including by lease, exchange, mortgage, pledge, transfer or other acquisition or assumption, of 20% or more of the fair value of the assets or 20% or more of any class of equity or voting securities of (A) GFI and its Subsidiaries, (B) JPI, (C) New JPI or (D) the CME Retained Subsidiaries (as defined in the GFI Merger Agreement), in each case taken as a whole and in one transaction or a series of related transactions, (iii) purchase, tender offer, exchange offer or other acquisition (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination exchange or other similar transaction involving any material portion otherwise) of Beneficial Ownership of Securities representing 20% or more of the assets voting power of GFI’s, JPI’s, New JPI’s or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, CME Retained Subsidiaries’ (as defined in the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(iiGFI Merger Agreement) enter into, maintainSecurities, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreementtransaction, arrangement or understanding requiring it combination of transactions, similar to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionforegoing; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior term “Takeover Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above ” shall not constitute a breach by include the Company of this AgreementTransactions.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (GFI Group Inc.)
No Solicitation. (a) The parties acknowledge Company has ceased and agree that prior caused --------------- to October 15be terminated all existing discussions, 1999negotiations and communications with any Persons with respect to any Acquisition Proposal. Except as provided in Section 5.3(b), from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall not and shall not authorize or permit its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall notto, and shall instruct the Company Representatives use its best efforts to cause its Other Employees not to:
, directly or indirectly (i) directly or indirectly solicit, initiate, solicit or encourage (including by way of furnishing nonpublic information or assistance)knowingly encourage, or knowingly take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of facilitate the assets or any securities making of, any mergeroffer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal, consolidation (ii) enter into any agreement with respect to any Acquisition Proposal, or business combination (iii) in the event of an unsolicited Acquisition Proposal for the Company, engage in negotiations or discussions with, or provide any public announcement of a proposalinformation or data concerning the Company's business, planproperties or assets to, or intention to do any of the foregoing by, the Company Person (other than Parent or any of its Subsidiaries (such transactions being referred affiliates or representatives) relating to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into . Any violation of the foregoing restrictions by any agreementof the Company's Representatives, arrangement whether or understanding requiring it not such Representative is so authorized and whether or not such Representative is purporting to abandonact on behalf of the Company or otherwise, terminate or fail shall be deemed to consummate be a breach of this Agreement by the Merger Company. Notwithstanding the foregoing, nothing contained in this Section 5.3 or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement provision hereof shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board of Directors from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Special Committee determines in good faithExchange Act, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to including taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders stockholders its position with respect to tender or exchange offer by a position contemplated by third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offerAct, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.50
Appears in 2 contracts
Sources: Merger Agreement (Cheap Tickets Inc), Merger Agreement (Cendant Corp)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) belowNo Solicitation by ▇▇▇▇-▇▇▇▇▇.
(bi) From Except as specifically permitted by this Section 6.2(a), ▇▇▇▇-▇▇▇▇▇ shall not and after October 15shall cause each of its Subsidiaries and Representatives not to, 1999 during the period from the date of this Agreement until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with Section 8.1, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly indirectly, (A) solicit, initiate, facilitate or encourage (including by way of furnishing nonpublic information or assistance)non-public information) any inquiries regarding, or take the making of any other action to facilitate, any inquiries proposal or proposals from any person offer that constituteconstitutes, or may could reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination witha ▇▇▇▇-▇▇▇▇▇ Takeover Proposal, or any public announcement of a proposal, plan, (B) engage or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintaincontinue or otherwise participate in any discussions or negotiations regarding, or continue furnish to any other party material non-public information in connection with any ▇▇▇▇-▇▇▇▇▇ Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a ▇▇▇▇-▇▇▇▇▇ Takeover Proposal. ▇▇▇▇-▇▇▇▇▇ shall, and shall cause each of the ▇▇▇▇-▇▇▇▇▇ Subsidiaries and each of its and the ▇▇▇▇-▇▇▇▇▇ Subsidiaries’ Representatives to (1) immediately upon execution of this Agreement, cease any solicitation, encouragement, discussions or negotiations with any person in furtherance Person that may be ongoing with respect to a ▇▇▇▇-▇▇▇▇▇ Takeover Proposal as of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by date of this Agreement, orand (2) request promptly thereafter, and in any event within two Business Days of the date of this Agreement, that such Person promptly return or destroy all confidential information concerning ▇▇▇▇-▇▇▇▇▇ and the ▇▇▇▇-▇▇▇▇▇ Subsidiaries delivered or made available to such Person or its Representatives by ▇▇▇▇-▇▇▇▇▇, the ▇▇▇▇-▇▇▇▇▇ Subsidiaries or any Representatives thereof, in connection with its consideration of a ▇▇▇▇-▇▇▇▇▇ Takeover Proposal and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (3) immediately upon execution of this Agreement terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives.
(vii) authorize Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the ▇▇▇▇-▇▇▇▇▇ Stockholder Approval, ▇▇▇▇-▇▇▇▇▇ or permit the Company any of its Representatives to take receives a ▇▇▇▇-▇▇▇▇▇ Takeover Proposal from any such action; provided, however, Person or group of Persons (including any Person or group of Persons that discussed a ▇▇▇▇-▇▇▇▇▇ Takeover Proposal with ▇▇▇▇-▇▇▇▇▇ or made a ▇▇▇▇-▇▇▇▇▇ Takeover Proposal prior to the approval date of the Merger by the shareholders this Agreement), which ▇▇▇▇-▇▇▇▇▇ Takeover Proposal did not result from any breach of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from Section 6.2(a), then ▇▇▇▇-▇▇▇▇▇ and its Representatives may (A) furnishing information tocontact such Person or group of Persons and their Representatives solely to request that such Person or group of Persons provide written clarification of any term or condition of the ▇▇▇▇-▇▇▇▇▇ Takeover Proposal that the ▇▇▇▇-▇▇▇▇▇ Board of Directors determines in good faith to be ambiguous or unclear, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire (B) if the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale ▇▇▇▇-▇▇▇▇▇ Board of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee Directors determines in good faith, after consulting consultation with its independent legal counsel (which may be the Company's regularly engaged financial advisors and outside legal counsel, that such ▇▇▇▇-▇▇▇▇▇ Takeover Proposal constitutes or is reasonably expected to lead to a ▇▇▇▇-▇▇▇▇▇ Superior Proposal, then ▇▇▇▇-▇▇▇▇▇ and its Representatives may (1) furnish, pursuant to an Acceptable ▇▇▇▇-▇▇▇▇▇ Confidentiality Agreement, information (including non-public information) with respect to ▇▇▇▇-▇▇▇▇▇ and its Subsidiaries to the Person or group of Persons who has made such ▇▇▇▇-▇▇▇▇▇ Takeover Proposal and their respective Representatives and financing sources; provided that ▇▇▇▇-▇▇▇▇▇ shall (subject to the terms of the Confidentiality Agreement) promptly (and, in any event within two Business Days) make available to Spartan Stores (through an electronic dataroom or otherwise), and concurrently provide express written notification, via electronic mail notification to Spartan Stores in accordance with the applicable provisions of Section 9.6, of the availability of, any written material non-public information that it has a fiduciary obligation is provided to furnish any such Person or group of Persons or their respective Representatives and financing sources, if such information was not previously provided to Spartan Stores or its Representatives, and (2) engage in such or otherwise participate in discussions or negotiations with the Person or group of Persons making such person or entity ▇▇▇▇-▇▇▇▇▇ Takeover Proposal and their respective Representatives and financing sources; provided, further that ▇▇▇▇-▇▇▇▇▇ shall promptly (and, in any event within two Business Days) provide to Spartan Stores (y) a copy of any ▇▇▇▇-▇▇▇▇▇ Takeover Proposal made in writing by any such proposal meeting such criteriaPerson or group of Persons to ▇▇▇▇-▇▇▇▇▇, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK any of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required actionSubsidiaries, or any action required by the rules or regulations of any self-regulating securities exchangetheir respective Representatives, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person Person making it. The Company also will promptly notify HK the ▇▇▇▇-▇▇▇▇▇ Takeover Proposal, and (z) a written summary of the material terms of any change to such ▇▇▇▇-▇▇▇▇▇ Takeover Proposal not made in writing. From and after the date hereof, ▇▇▇▇-▇▇▇▇▇ shall not grant any waiver, amendment or modification release under, or otherwise amend or modify, any standstill or confidentiality agreement without the prior written consent of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent thatSpartan Stores; provided, as of October 15, 1999however, the Company▇▇▇▇-▇▇▇▇▇ Board of Directors may waive any restriction in a standstill provision on a Person making proposals to the ▇▇▇▇-▇▇▇▇▇ Board of Directors, so long as it concurrently waives any similar restrictions on Spartan Stores contained in the Confidentiality Agreement. For the purposes of its affiliates or this Agreement, “Acceptable ▇▇▇▇-▇▇▇▇▇ Confidentiality Agreement” means any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) confidentiality agreement and standstill agreement that contains provisions with respect to any proposal confidentiality and standstill matters that does are no less favorable to ▇▇▇▇-▇▇▇▇▇ than those contained in the Confidentiality Agreement, except that such agreement need not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company submission of ▇▇▇▇-▇▇▇▇▇ Takeover Proposals or amendments thereto to the ▇▇▇▇-▇▇▇▇▇ Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionDirectors.
Appears in 2 contracts
Sources: Merger Agreement (Nash Finch Co), Merger Agreement (Nash Finch Co)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999Except as set forth in this Section 6.1, the Company shall not, nor shall it authorize or permit its Subsidiary or any of its or their respective directors, officers or employees to, and it shall use reasonable best efforts to cause the Company’s and its affiliates Subsidiary’s Affiliates, investment bankers, attorneys, accountants or other advisors, agents or representatives (such directors, officers, employees, Affiliates, investment bankers, attorneys, accountants, other advisors, agents and representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) solicit, initiate, propose, knowingly encourage or knowingly take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, including (A) approving any transaction under Section 7-5.2-4 of the Rhode Island Business Combination Act, (B) approving any person becoming an “interested shareholder” under Section 7-5.2-4 of the Rhode Island Business Combination Act and (C) amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Shares (except for any portion of any such standstill or similar agreement that restricts the ability of a person to privately communicate an Acquisition Proposal to the Company, the Company Board or any committee thereof); or
(ii) enter into, continue or otherwise participate in any communications, discussions or negotiations regarding, furnish to any person any information or data with respect to, knowingly assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly cooperate in any way with, any Acquisition Proposal (other than to advise such person of the Company’s obligations under this Section 6.1). Notwithstanding the foregoing, prior to the receipt of the Company Shareholder Approval (the “Specified Time”), the Company may, in response to a bona fide, unsolicited written Acquisition Proposal (that has not been withdrawn) made or received after the date of this Agreement, in each case that did not result from a breach by the Company of this Section 6.1, (x) contact the person or group of persons who has made such Acquisition Proposal in order to clarify terms for the sole purpose of the Company Board informing itself about such Acquisition Proposal in order to assess whether such proposal is reasonably likely to lead to a Superior Proposal and (y) if the Company Board reasonably determines in good faith after consultation with outside counsel and the Financial Advisor or another nationally recognized independent financial advisor that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, (1) furnish information or data with respect to the Company to the person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement (a copy of which shall be permitted provided to take the actions proscribed Parent within 48 hours of being fully executed) (provided that such confidentiality agreement shall not be required to restrict a person from privately communicating an Acquisition Proposal to the Company, the Company Board or any committee thereof, and provided further that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of otherwise prohibiting the Company from complying with any provisions of this Section 6.1) and (2) participate in clauses (b)(idiscussions or negotiations with such person and its Representatives regarding such Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.1(a) through (vby any director, officer or employee of the Company or its Subsidiary, whether or not such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 6.1(a) belowby the Company.
(b) From and after October 15, 1999 until the termination of this Agreement, Neither the Company and its affiliates shall not, and shall instruct the Company Representatives not toBoard nor any committee thereof shall:
(i) directly except as set forth in this Section 6.1(b), withhold, withdraw, qualify or indirectly solicit, initiatemodify, or encourage propose to any third party to withhold, withdraw, qualify or modify, in a manner adverse to the Parent or the Merger Sub, the approval or recommendation by the Company Board or any such committee of this Agreement or the Merger;
(ii) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement constituting or relating to, or that could reasonably be expected to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iii) adopt, approve or recommend, or propose to adopt, approve or recommend, any Acquisition Proposal. Notwithstanding the foregoing, provided the Company shall not have breached in a material respect its obligations under Section 6.1(a), the Company Board may withdraw or modify the recommendation by the Company Board or any committee thereof of this Agreement or the Merger if:
(A) the Company Board determines in good faith, after consultation with outside counsel and the Financial Advisor or another nationally recognized independent financial advisor, that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board to the shareholders of the Company either (1) based upon a material development or change that impacts the Company (other than an Acquisition Proposal) that was neither known to, nor reasonably foreseeable by, the Company Board or management of the Company or its Subsidiary as of or prior to the date hereof (it being agreed that the results of the introduction of new or modified products or the results of sales or marketing initiatives (including by way any increase in sales as a result thereof whether to new or existing customers) are reasonably foreseeable and shall not be considered a material development or change in circumstances) (such material development or change in circumstances, an “Intervening Event”) or (2) the Company Board determines in good faith after consultation with its outside counsel and the Financial Advisor or another nationally recognized independent financial advisor that the Company has received an Acquisition Proposal that constitutes a Superior Proposal, but in each case only at a time that is prior to the Specified Time and is after 11:59 pm, New York City time, on the fourth business day following the Parent’s receipt of furnishing written notice (an “Adverse Recommendation Notice”) advising the Parent that the Company Board desires to withdraw or modify the recommendation (and the manner and timing in which it intends to do so, and in the case of an Intervening Event, specifying the reasons therefor in reasonable detail) (such four business day period, the “Notice Period”); and
(B) the Company provides the Parent with a reasonable opportunity to make adjustments in the terms and conditions of this Agreement and negotiates in good faith with the Parent with respect thereto during the Notice Period, in each case as would enable the Company Board or committee thereof to conclude that (1) the Intervening Event is no longer a basis for any Company Adverse Recommendation Change or (2) the Acquisition Proposal that was determined to be a Superior Proposal is no longer a Superior Proposal. Any material changes to the financial terms or any material change to other material terms of such Superior Proposal occurring prior to the Company Board’s effecting a Company Adverse Recommendation Change pursuant to this Section 6.1(b) shall require the Company to provide to the Parent a new Adverse Recommendation Notice and a new Notice Period and to comply with the requirements of this Section 6.1(b) with respect to each such Adverse Recommendation Notice, except that the references to the “fourth business day” shall be deemed to be to the “second business day.” Any Company Adverse Recommendation Change shall not change the approval of this Agreement or any other approval of the Company Board, including in any respect that would have the effect of causing any state (including Rhode Island) corporate takeover statute or other similar statute to be applicable to the transactions contemplated hereby or thereby, including the Merger. Nothing in this Section 6.1 (but subject to the provisions of Section 8.1(d)(ii), if applicable) shall be deemed to (A) permit the Company to take any action described in clauses (ii) or (iii) of the first sentence of this Section 6.1(b) or (B) limit the Company’s obligation to call, give notice of, convene and hold the Company Meeting, regardless of whether the Company Board has withdrawn or modified its recommendation of this Agreement and the Merger.
(c) The Company shall promptly advise the Parent orally, with written confirmation to follow within 48 hours, of any Acquisition Proposal or any request for nonpublic information or assistance)in connection with any Acquisition Proposal, or take any inquiry with respect to or that could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of any such Acquisition Proposal or inquiry and the identity of the person making any such Acquisition Proposal or inquiry. The Company shall (i) keep the Parent reasonably informed, on a prompt basis, of the status and details (including any change to the terms) of any such Acquisition Proposal or inquiry and (ii) provide to the Parent as soon as practicable (and in any event within 48 hours) after receipt or delivery thereof copies of all material correspondence and other action material written material sent or provided to facilitatethe Company or its Representatives, any inquiries or proposals including those provided by electronic mail, from any person third party in connection with any Acquisition Proposal or sent or provided by the Company or its Representatives to any third party in connection with any Acquisition Proposal. Contemporaneously with providing any information to a third party in connection with any such Acquisition Proposal or inquiry, the Company shall furnish a copy of such information to the Parent.
(d) Nothing in this Agreement shall restrict the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or taking or disclosing a position contemplated by Rules 14d-9 or 14e-2(a) under the Exchange Act, or otherwise making disclosure to comply with applicable Law; provided, that constituteany such disclosure that constitutes a Company Adverse Recommendation Change shall be subject to Section 6.1(b). For the avoidance of doubt, a factually accurate public statement that describes the receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto (without including such a reaffirmation of the recommendation of the Company Board of this Agreement) shall not be deemed a Company Adverse Recommendation Change.
(e) The Company shall, and shall cause its Subsidiary and its and their Representatives to, cease immediately all communications, discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to lead to, an acquisitionAcquisition Proposal.
(f) Except as set forth in Section 6.1(a)(i)(C), purchasethe Company agrees to enforce or cause to be enforced each confidentiality, merger, consolidation, share exchange, recapitalization, business combination “standstill” or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention agreement to do any of the foregoing by, which the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders Subsidiary of the Company nothing in this Agreement shall prohibit is a party at the Company Board request of the Parent, including by seeking specific performance of, or the Special Committee from (A) furnishing information to, and engaging in discussions injunctive or negotiations withother equitable relief under, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do soagreements, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach expenses incurred by the Company in connection with such enforcement shall reduce the Target Cash Amounts.
(g) For purposes of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.:
Appears in 2 contracts
Sources: Merger Agreement (Essilor International /Fi), Merger Agreement (Costa Inc)
No Solicitation. (a) The parties acknowledge Notwithstanding anything else in this Section 5.02 (but otherwise subject to the terms of this Agreement), during the period beginning on the date of this Agreement and agree continuing until 11:59 p.m. (Central Time) on the date that prior is 30 days after the date of execution of this Agreement (the “Original Solicitation Period End Date”), as such date may be extended to October 15the Solicitation Period End Date (as defined below) with respect to only a Continuing Party pursuant to the second proviso of this Section 5.02(a), 1999the Company, and any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, and any Affiliate of, the Company and its affiliates and the or any Company Representatives Subsidiary shall be permitted (acting under the direction of the Company Board, or, if applicable, the Special Committee) to (i) directly or indirectly solicit, initiate or encourage the submission of a Company Takeover Proposal and (ii) directly or indirectly participate in discussions or negotiations regarding, and furnish to any Person information with respect to, and take any other action to facilitate any inquiries or the actions proscribed making of any proposal that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal; provided, however, that (A) the Company shall not, nor shall it authorize or permit any Company Subsidiary, Representative or Affiliate of the Company or any Company Subsidiary to: (i) provide to any Person any non-public information with respect to the Company or any Company Subsidiary without first entering into an Acceptable Confidentiality Agreement with such Person, (ii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or anti-takeover Laws, or (iii) approve or enter into any letter of intent, memorandum of understanding, agreement in clauses principle, commitment, merger agreement, acquisition agreement or similar agreement relating to any Company Takeover Proposal or that conflicts with this Agreement or requires or would reasonably be expected to require, the Company to abandon this Agreement (b)(ieach, an “Acquisition Agreement”) through other than an Acceptable Confidentiality Agreement or a non-binding letter of intent or term sheet entered into prior to the Original Solicitation Period End Date described in clause (vB) belowof the second proviso of this Section 5.02(a), and (B) the Company shall promptly provide to Parent any non-public information concerning the Company or any Company Subsidiary that is provided to such Person, its Representatives or Affiliates which was not previously provided to Parent, its Representatives or Affiliates; and provided, further, that the Solicitation Period End Date shall be extended until the date provided in the immediately following sentence solely with respect to any Person (a “Continuing Party”) that has submitted to the Company a bona fide detailed written Company Takeover Proposal prior to the end of the Original Solicitation Period End Date that (1) shall (A) provide that each issued and outstanding share of Company Common Stock shall be converted into the right to receive in excess of $13.55, (B) include a non-binding letter of intent or term sheet reflecting the material terms of such Company Takeover Proposal (which the Company may or may not sign), (C) include a draft merger agreement (which may be provided in the form of this Agreement marked to show a draft of the changes such Continuing Party proposes to make to this Agreement), (D) include a detailed non-binding term sheet setting forth the proposed terms of any proposed equity and/or debt financing required to fund the purchase price in connection with any such Company Takeover Proposal, and (E) include any draft voting or other ancillary agreements with the Company or any of its Affiliates that comprise a material component of such Company Takeover Proposal and (2) the Company Board (or, if applicable, the Special Committee), determines, by 11:59 p.m. (Central Time) on the day that is two (2) calendar days after the Original Solicitation Period End Date (the “Continuing Party Determination Date”), in good faith, after consultation with its outside counsel and its independent financial advisors, is a Superior Company Proposal or would reasonably be expected to lead to a Superior Company Proposal by or prior to 11:59 p.m. (Central Time) on the date that is 45 days after the execution of this Agreement as such date may be extended with respect to a particular Continuing Party pursuant to the following sentence (the “Solicitation Period End Date”). The Original Solicitation Period End Date solely with respect to any such Continuing Party shall be deemed to be extended until, and terminate at, the Solicitation Period End Date, unless on or prior to such date, the Company shall have delivered a Superior Proposal Notice with respect to a Superior Company Proposal proposed by such Continuing Party pursuant to Section 8.05(b) hereof, in which case the Solicitation Period End Date solely with respect to such Continuing Party shall be deemed to be extended until, and shall terminate on, 11:59 p.m. (Central Time) on the date that is two (2) Business Days following the last day of the last Notice Period (including any new Notice Period(s) that may be required if any Continuing Party makes any modification to the financial terms or other material terms of a Company Takeover Proposal prior to the Solicitation Period End Date as extended hereby) described in Section 8.05(b) relating to such Superior Company Proposal. Notwithstanding anything in this Section 5.02(a) to the contrary, any Continuing Party shall cease to be a Continuing Party for all purposes hereunder at such time as any bona fide detailed written Company Takeover Proposal made by such Continuing Party is withdrawn, terminated, expires or at any time fails to satisfy the requirements of this Section 5.02(a) in all respects, with respect to the terms of clause (1)(A) of the second proviso of the first sentence of this Section 5.02(a), and otherwise in all material respects.
(b) From Subject to the terms hereof (including Section 5.02(a) with respect to a Continuing Party and after October 15Sections 5.02(c), 1999 5.02(d) and 8.05), from the day following the Original Solicitation Period End Date until the earlier of the Effective Time and the termination of this AgreementAgreement pursuant to Article VIII, the Company and its affiliates shall not, and nor shall instruct it authorize or permit any Company Subsidiary, or any Representative or Affiliate of, the Company Representatives not or any Company Subsidiary to:
, (i) directly or indirectly solicit, initiate, propose, encourage, facilitate or encourage (including by way induce any inquiries, discussions, proposals, indications of furnishing nonpublic information interest, submissions or assistance)announcements of any Company Takeover Proposal, or take any other action to facilitateencourage, facilitate or assist any inquiries or proposals from any person that constitutediscussions, or may the making of any proposal, indication of interest, submission or announcement, in each case, that constitutes or could reasonably be expected to lead to, any Company Takeover Proposal, (ii) approve or enter into any Acquisition Agreement (other than an acquisitionAcceptable Confidentiality Agreement), purchase(iii) directly or indirectly participate or engage in any discussions or negotiations regarding any Company Takeover Proposal, merger(iv) furnish to any Person (other than Parent, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets Sub or any securities of, Representative of Parent or Sub) any merger, consolidation or business combination with, or any non-public announcement of a proposal, plan, or intention information relating to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintainthe Company Subsidiaries, or continue discussions afford to any Person (other than Parent, Sub and any Representatives of Parent and Sub) access to the business, properties, assets, books, records or negotiations with other non-public information, or to any person personnel, of the Company or any of the Company Subsidiaries, in furtherance of any such case, which could reasonably be expected to induce the making, proposal, submission or announcement of, or which could reasonably be expected to encourage, facilitate or assist, a Company Takeover Proposal or any inquiries or discussions, or the making of any proposal, indication of interest, submission or announcement, in any such case, which could reasonably be expected to obtain an Acquisition Proposal;
lead to a Company Takeover Proposal (iii) agree to or endorse any Acquisition Proposal;
it being acknowledged and agreed by Parent that the terms of this clause (iv) enter into shall not be deemed breached by any agreementdisclosure by the Company of non-public information in the ordinary course of business consistent with past practice to any customer or supplier solely in its capacity as a customer or supplier and not in the context of a Company Takeover Proposal, arrangement it being further acknowledged and agreed that any provision of such information to any customer or understanding requiring it supplier when acting in the capacity of a potential maker of a Company Takeover Proposal shall be deemed a breach of the terms of this clause (iv) (unless such information is provided pursuant to abandonand in compliance with the terms of Section 5.02(c)), terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize grant any waiver, amendment or permit release under any standstill or confidentiality agreement, or anti-takeover Laws, or otherwise take any action with the primary purpose of facilitating any effort or attempt by any Person to make a Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Company Subsidiary, Representative or Affiliate of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 5.02(b) by the Company. Subject to Section 5.02(a) (with respect to only a Continuing Party) and Section 5.02(c), beginning on the day following the Original Solicitation Period End Date, the Company shall immediately cease and cause to be terminated any existing solicitation, encouragement, discussion, negotiation or other action permitted by Section 5.02(a) conducted by the Company, any Company Subsidiary or any of their respective Representatives or Affiliates regarding any proposal that constitutes, or could reasonably be expected to take lead to, a Company Takeover Proposal (other than with respect to a Person that is then a Continuing Party). The Company shall, (X) on the Continuing Party Determination Date, deliver a written notice to each Person that submitted a Company Takeover Proposal prior to the Original Solicitation Period End Date (other than with respect to a Person that is, as of such date, a Continuing Party, or with respect to a Person which has made a Company Takeover Proposal and with which the Company would be allowed to participate in discussions and negotiations with respect to such Company Takeover Proposal pursuant to and in accordance with Section 5.02(c), and subject to the last sentence of Section 5.02(a)) to the effect that, the Company is ending all discussions and negotiations with such Person with respect to any Company Takeover Proposal, effective on and from such actiondate, and the notice shall also request that such Person promptly return or destroy all confidential information concerning the Company and the Company’s Subsidiaries, and (Y) provide Parent with (A) the number of Persons that have been qualified as Continuing Parties and (B) copies of all documents referred to in clauses (B) through (E) of the second proviso in Section 5.02(a); provided, however, that prior that, subject to Section 5.02(e) and Section 8.05(b), the Company may (1) limit the identity of the Continuing Party to whether it is a strategic or financial Person (including making any necessary redactions in any of the copies referred to in clause (B) above) and (2) exclude the identity of the financing sources, and pricing terms of the financing proposed to be provided by such financing sources, in connection with the Company Takeover Proposal proposed by any such Continuing Party.
(c) Notwithstanding anything to the approval contrary in Section 5.02(b), but subject to the other terms of this Agreement (including Section 5.02(a) and Sections 5.02(d), 5.02(f) and 8.05) from the Merger by day after the shareholders of Original Solicitation Period End Date to the date on which the Company nothing Stockholder Approval is received, the Company may in this Agreement shall prohibit response to an unsolicited, bona fide written Company Takeover Proposal which did not result from a breach of Section 5.02, and which the Company Board or (acting through the Special Committee from (ACommittee, if applicable) furnishing information todetermines, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, (1) after consulting consultation with its outside counsel and its independent legal counsel financial advisors, constitutes or would reasonably be expected to lead to, a Superior Company Proposal and (which may 2) would be reasonably likely to result in a breach of their fiduciary duties to the Company's regularly engaged outside legal counsel)’s stockholders if they fail to take the actions described in clauses (x) and (y) below, that it has a fiduciary obligation take the following actions (or instruct their Representatives to take the following actions): (x) furnish information with respect to the Company and the Company Subsidiaries to the Person making such information or engage Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement and (y) participate in such discussions or negotiations with such person or entity (Person, its Representatives and Affiliates regarding any such proposal meeting such criteria, a "Superior Company Takeover Proposal"), provided, . The parties agree that prior to taking such action, nothing herein shall prevent the Company notifies HK of or its intentions and obtains an executed confidentiality agreement Representatives from directing any Persons to this Agreement from the appropriate parties substantially similar to day following the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of Original Solicitation Period End Date until the receipt of any Formal Acquisition Proposalthe Company Stockholder Approval or, if earlier, the terms and conditions date of such proposal and the identity termination of the person making it. The Company also will promptly notify HK of any change this Agreement pursuant to or modification of such Formal Acquisition Proposal and the terms and conditions thereofhereof.
(d) To Subject to Section 8.01(d) and 8.01(f), commencing on the extent thatdate hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, as of October 15neither the Company nor the Company Board (acting through the Special Committee, 1999if applicable) nor any committee thereof shall (i) withhold, the Companywithdraw, any of its affiliates amend, qualify or any Company Representative is engaged modify, in discussions a manner adverse to Parent or negotiations with any person Sub, or entity (other than HK) with respect propose publicly to any proposal that does not at such time constitute withhold, withdraw, amend, qualify or modify, in a Superior Proposal as defined in (b) abovemanner adverse to Parent or Sub, or change to a neutral position or no position, the Company shallBoard Recommendation, and shall cause its affiliates and (ii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, or publicly take a neutral position or no position with respect to, any Company Takeover Proposal, (iii) make any public statement or take any public action in connection with the Company Representatives toStockholders Meeting that is inconsistent with the Company Board Recommendation, cease or (iv) fail to include the Company Board Recommendation in the Proxy Statement (any and all activitiesof the actions or events described in clauses (i) through (iv), discussions or negotiations as of such datean “Adverse Recommendation Change”). Nothing Notwithstanding anything in this Section 5.9(d5.02(d) is intended to preventthe contrary (but otherwise subject to the terms of this Agreement), deterat any time prior to receipt of the Company Stockholder Approval, or prohibit the Company Board or (or, if applicable, the Special Committee from taking any action permitted by Committee) may, make an Adverse Recommendation Change: (i) in response to a Superior Company Proposal, but only after compliance with Section 5.9(b8.05(b); or (ii) above in response to an Intervening Event if, but only if (A) a majority of the directors of the Company Board (acting through the Special Committee, if applicable) shall have determined in their good faith judgment, after consultation with outside legal counsel and consultation with an independent financial advisor, that the taking of any failure to make an Adverse Recommendation Change in response to such action shall not constitute Intervening Event would result or would reasonably be expected to result in a breach of their fiduciary duties to the stockholders of the Company under the DGCL (any such determination, an “Intervening Event Determination”); (B) the Company promptly, but in any event within one (1) day of making any Intervening Event Determination, notifies Parent in writing that the Company Board (acting through the Special Committee, if applicable) has made an Intervening Event Determination (any such notice, an “Intervening Event Notice”) and provides Parent with a description of the Intervening Event in reasonable detail; (C) for a period of at least five (5) days following receipt by Parent of an Intervening Event Notice (such time period, the “Intervening Event Notice Period”), the Company has, if requested by Parent, negotiated in good faith with Parent to permit Parent to make a proposal or to amend the terms of the Transactions or this provision.Agreement; (D) at the end of the Intervening Event Notice Period, and taking into account any proposals (in
Appears in 2 contracts
Sources: Merger Agreement (Sport Supply Group, Inc.), Merger Agreement (Sage Parent Company, Inc.)
No Solicitation. The Company shall not and shall not authorize or permit its directors, officers, employees, advisors agents, representatives and investment bankers (a) The parties acknowledge and agree that prior with respect to October 15, 1999any Person, the Company and its affiliates and the Company Representatives shall be permitted foregoing Persons are referred to take the actions proscribed in clauses (b)(iherein as such Person's "Representatives") through (v) below.
(b) From and after October 15to, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly indirectly, solicit, initiate, endorse or knowingly take any action to facilitate or encourage (including by way the submission of furnishing nonpublic information any Takeover Proposal or assistance), or take the making of any other action to facilitate, any inquiries or proposals from any person proposal that constitute, or may could reasonably be expected to lead toto any Takeover Proposal, an acquisitionor, purchasesubject to Section 6.04(b), merger(i) conduct, consolidation, share exchange, recapitalization, business combination continue or engage in or otherwise participate in any discussions (other similar transaction involving any material portion than to inform a Person of the assets existence of this provisions of this Section 6.04) or negotiations with, disclose any securities ofnon-public information relating to the Company, afford access to the business, employees, properties, assets, books or records of the Company or knowingly assist, participate in, facilitate or encourage any effort by, any mergerthird party that is seeking to make, consolidation or business combination withhas made, any Takeover Proposal, (ii) (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 (B) approve any transaction under, or any public announcement third party becoming an "interested stockholder" under, Section 203 of a proposalthe DGCL, plan(iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or intention (iv) resolve, propose, or agree to do any of the foregoing by(each, a "Company Acquisition Agreement"). Subject to Section 6.04(b), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). The Company shall cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its Subsidiaries (such transactions being referred or their Representatives to herein as "Acquisition Proposals");
(ii) enter intocontinue, maintainany and all existing activities, or continue discussions or negotiations negotiations, if any, with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that third party conducted prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 date hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, Takeover Proposal and shall use its commercially reasonable efforts to cause any 26995100v.1 such third party (or taking any other legally required action, its agents or any action required by the rules or regulations advisors) in possession of any selfnon-regulating securities exchange, market or other body (including, without limitation, the making public information in respect of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's that was furnished by or the Special Committee's exercise on behalf of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreementto promptly return or destroy (and confirm destruction of) all such information.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Merger Agreement (Nanosphere Inc), Merger Agreement (Nanosphere Inc)
No Solicitation. (a) The parties acknowledge Each of JPI, New JPI and agree each Signing Stockholder shall not, nor shall they authorize or permit any of their respective Affiliates or any of their or their respective Affiliates' respective Representatives to, directly or indirectly (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (ii) adopt, or publicly propose to adopt, or allow JPI or New JPI to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement, undertaking, or understanding in connection with or relating to any Takeover Proposal, or (iii) other than with CME, Merger Sub 1, Merger Sub 2 or their respective Representatives, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data in connection with or relating to, any Takeover Proposal. Each of JPI, New JPI and each Signing Stockholder shall, and shall cause their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to October 15the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement. Notwithstanding the foregoing, 1999nothing herein shall prevent any Representative of JPI or New JPI or any Signing Stockholder from acting in his or her capacity as an officer or director of GFI, or taking any action in such capacity, but only in either such case as and to the Company and its affiliates and extent permitted by Section 6.5(b) of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) belowGFI Merger Agreement.
(b) From and after October 15, 1999 until the termination For purposes of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
"Takeover Proposal" means any proposal or offer for a direct or indirect (i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, binding share exchange, recapitalization, reorganization, scheme of arrangement under the United Kingdom Companies ▇▇▇ ▇▇▇▇, liquidation, dissolution, business combination or consolidation, or any similar transaction, involving GFI or one or more of its Subsidiaries, JPI or New JPI, (ii) the acquisition or purchase, including by lease, exchange, mortgage, pledge, transfer or other similar transaction involving any material portion acquisition or assumption, of 20% or more of the fair value of the assets or 20% or more of any class of equity or voting securities ofof (A) GFI and its Subsidiaries, any merger(B) JPI, consolidation (C) New JPI or business combination with, or any public announcement of a proposal, plan, or intention to do any of (D) the foregoing by, the Company or any of its CME Retained Subsidiaries (such transactions being referred to herein as "Acquisition Proposals"defined in the GFI Merger Agreement);
(ii) enter into, maintainin each case taken as a whole and in one transaction or a series of related transactions, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchangepurchase, tender offer, recapitalization, business combination exchange offer or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.other
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Jersey Partners Inc.), Agreement and Plan of Merger (Jersey Partners Inc.)
No Solicitation. (a) The parties acknowledge Each of GM and agree that prior to October 15▇▇▇▇▇▇ agrees that, 1999, during the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination term of this Agreement, the Company and its affiliates it shall not, and nor shall instruct the Company Representatives not it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its or its Subsidiaries' officers, directors, employees, investment bankers, attorneys, accountants, agents or other advisors or representatives (collectively, "Representatives"), directly or indirectly, to:
(i) directly or indirectly solicit, initiateinitiate or knowingly facilitate or encourage the making by any Person (other than the other parties hereto) of any proposal, offer or inquiry that constitutes, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may could reasonably be expected to lead to, an acquisition, purchase, a proposal for any merger, consolidation, share exchange, recapitalization, consolidation or other business combination involving ▇▇▇▇▇▇ and a third party, or other similar transaction involving any acquisition by a third party of any capital stock or any material portion of the assets (except for (A) acquisitions of assets in the ordinary course of business consistent with past practice and permitted by Section 8.2 of this Agreement, (B) dispositions of the assets or any securities ofcapital stock of DIRECTV Latin America, any merger, consolidation LLC ("DIRECTVLA") pursuant to an order or business combination with, or any public announcement orders of a proposal, plan, or intention to do any court of competent jurisdiction and (C) consummation of the foregoing by, transactions contemplated by the Company Transaction Agreements) of ▇▇▇▇▇▇ or any of its Subsidiaries Significant Subsidiaries, or shares of GM Class H Common Stock or any combination of the foregoing (such transactions being referred to herein as in each case, a "Acquisition ProposalsCompeting Transaction");
(ii) enter into, maintain, or continue participate in any discussions or negotiations regarding, or furnish or disclose to any Person any information with any person respect to or in furtherance of such of, or take any other action knowingly to facilitate any inquiries or with respect to obtain an Acquisition Proposalany Competing Transaction;
(iii) agree grant any waiver or release under any standstill or similar agreement with respect to ▇▇▇▇▇▇ or endorse any Acquisition Proposal;of its Subsidiaries; or
(iv) execute or enter into any agreement, understanding or arrangement (other than a confidentiality agreement) with respect to any Competing Transaction, or understanding requiring it approve or recommend or propose to abandon, terminate approve or fail to consummate the Merger recommend any Competing Transaction or any other transaction contemplated by this Agreementagreement, or
understanding or arrangement relating to any Competing Transaction (v) or resolve or authorize or permit propose to agree to do any of the Company Representatives to take any such actionforegoing actions); provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from that:
(A) furnishing information toat any time prior to such time, if any, that the Requisite Stockholder Approval shall have been received with respect to the Requisite Vote Matters, GM and engaging ▇▇▇▇▇▇ may take any action described in discussions the foregoing clauses (ii) or negotiations with(iii) (in the case of clause (iii), any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that necessary to permit the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with contemplated by clause (ii)) in respect of any Person, but only if (1) such person Person has delivered a proposal for a Competing Transaction that, in the good faith judgment of the GM Board of Directors is a Superior Proposal or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior is reasonably likely to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar lead to the Confidentiality Agreement, delivery of a Superior Proposal and (B2) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committeeof Directors of GM, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has is required to do so in order to comply with its fiduciary duties; provided, further, that (x) prior to GM or ▇▇▇▇▇▇ furnishing any confidential information to such Person, such Person shall have entered into a fiduciary obligation confidentiality agreement with GM and/or ▇▇▇▇▇▇ in substance substantially similar to the Confidentiality Agreement and (y) GM and ▇▇▇▇▇▇ shall promptly notify (but in no event later than 48 hours) the Purchaser of any such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any inquiries, proposals or offers, and shall keep the Purchaser reasonably informed as to the status thereof;
(B) each of GM and ▇▇▇▇▇▇ may enter into any agreement or arrangement (other than a confidentiality agreement, which may be entered into as contemplated in this Section 9.6) regarding any such Competing Transaction, or approve or recommend to its stockholders (or resolve to do so), provided that HK is or publicly propose to approve or recommend to its stockholders, any such Competing Transaction, but only if (1) GM has first given the Purchaser at least seventy-two days' prior written notice (72) hours to respond to such Competing Transaction after GM has notified the Purchaser that, in the absence of any further action by the Purchaser, it would consider such Competing Transaction to be a Superior Proposal and would be required to withdraw, revoke or modify its intentions to do sorecommendation of the Requisite Vote Matters, and given due consideration to any amendments or modifications to this Agreement proposed by the Purchaser during such period and (2) thereafter GM has terminated this Agreement in accordance with Section 3.2(c)(iii) hereof and simultaneously paid the GM Termination Fee pursuant to Section 3.4(a)(iv) hereof; and
(C) disclosing nothing herein shall limit GM's ability to comply in good faith, to the Company's shareholders a position contemplated by extent applicable, with Rules 14d-9 and 14e-2 promulgated under of the Exchange Act with respect regard to a tender or exchange offer or to make any tender offer, or taking any other legally required action, or any action disclosure required by Applicable Law.
(b) For the rules or regulations purposes of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A)"Superior Proposal" means a bona fide, (B) or (C) above shall written proposal by a third party for a Competing Transaction not constitute a breach by the Company solicited in violation of this Agreement.
Section 9.6 that is on terms that the GM Board of Directors determines in good faith, after consultation with its financial advisors and counsel, would, if consummated, result in a transaction that would be more favorable to GM and its stockholders (c) The Company will promptly notify HK taking into account such factors as the GM Board of the receipt of any Formal Acquisition ProposalDirectors in good ▇▇▇▇▇ ▇▇▇▇▇ relevant, the terms and conditions of such proposal and including the identity of the person making it. The Company also will promptly notify HK offeror and all legal, financial, regulatory and other aspects of the proposal, including the terms of any change to or modification of such Formal Acquisition Proposal financing and the terms and conditions thereoflikelihood that the transaction will be consummated) than the transactions contemplated by the Transactions.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hughes Electronics Corp), Stock Purchase Agreement (News Corp LTD)
No Solicitation. (a) The parties acknowledge Each of Republic and agree Allied agrees that prior to October 15it shall not, 1999and it shall cause its Subsidiaries not to, the Company and that it shall direct and cause its and its affiliates Subsidiaries’ respective officers, directors and employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its Subsidiaries) (collectively, “Representatives”) not to, directly or indirectly, initiate, solicit or otherwise knowingly encourage or facilitate any inquiries or the Company Representatives making by any third Person or group (as defined in the Exchange Act) of third Persons (other than the other party hereto and/or its Subsidiaries and their respective Representatives) (a “Third Party”) of any proposal or offer with respect to a purchase, merger, reorganization, share exchange, consolidation, amalgamation, arrangement, business combination, liquidation, dissolution, recapitalization or similar transaction involving 20% or more of its consolidated total revenues or assets (including by means of a transaction with respect to securities of such party or its Subsidiaries) or 20% or more of its outstanding shares of common stock (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”, it being understood that none of the transactions contemplated by this Agreement or set forth in Section 6.01(a) of the Allied Disclosure Schedule or Section 6.01(b) of the Republic Disclosure Schedule, as applicable, shall be deemed to constitute an Acquisition Proposal). Each of Republic and Allied further agrees that it shall not, and it shall cause each of its Subsidiaries not to, and it shall direct and cause its and its Subsidiaries’ Representatives not to, directly or indirectly, except as permitted by Section 6.02(b), (i) engage in any negotiations or discussions with, or provide any information or data to, any Third Party relating to take the actions proscribed an Acquisition Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Acquisition Proposal, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) execute or enter into, or publicly propose to accept or enter into an agreement with respect to an Acquisition Proposal, including a letter of intent, agreement in clauses principle, option agreement, merger agreement, acquisition agreement or other agreement (b)(iwhether binding or not) through (v) belowin furtherance of an Acquisition Proposal.
(b) From Notwithstanding the provisions of Section 6.02(a), nothing contained in this Agreement shall prevent Republic or Allied, or their respective Boards of Directors, from (A) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal (provided, however, no Change in Recommendation may be made unless otherwise permitted by this Section 6.02(b)), (B) providing information in response to a request therefor by a Third Party who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Republic or Allied, as the case may be, receives from the Third Party so requesting such information an executed confidentiality agreement on terms no less favorable in the aggregate to the disclosing party than those contained in the Confidentiality Agreement (but which need not contain standstill or non-solicitation of employee provisions and after October 15does not contain other terms that prevent Republic or Allied, 1999 until as the termination case may be, from complying with its obligations under this Section 6.02) and so long as any information provided to such Third Party that has not previously been provided to the other party is provided to the other party as promptly as practicable thereafter, (C) engaging in any negotiations or discussions (including solicitation of this Agreementa revised Acquisition Proposal) with any Third Party who has made an unsolicited bona fide written Acquisition Proposal, (D) effecting a Change in Recommendation in respect of an Acquisition Proposal or (E) effecting a Change in Recommendation other than in respect of an Acquisition Proposal; provided, however, that neither Republic nor Allied shall take any of the Company and its affiliates shall not, and shall instruct the Company Representatives not toforegoing actions unless:
(i) directly in each such case referenced in clause (B) or indirectly solicit(C) above, initiate(1) the applicable Stockholder Approval has not yet been obtained, (2) such party shall not have breached the provisions of this Section 6.02 and (3) the Board of Directors of the party determines in good faith (after consultation with its financial advisor of national reputation and outside legal counsel) that such Acquisition Proposal constitutes, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may could reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals")Superior Proposal;
(ii) enter intoin each case referenced in clause (D) above, maintainprior to Republic or Allied, or continue discussions or negotiations as the case may be, effecting a Change in Recommendation with any person in furtherance of such inquiries or respect to obtain an Acquisition Proposal;
, (iii1) agree to or endorse any Acquisition Proposal;
the applicable Stockholder Approval shall not have been obtained, (iv2) enter into any agreementsuch party shall not have breached the provisions of this Section 6.02, arrangement or understanding requiring it to abandon, terminate or fail to consummate (3) the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any Board of Directors of such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement party shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines have determined in good faith, after consulting consultation with independent legal counsel (which may be the Company's regularly engaged its financial advisor and outside legal counsel), that it has such Acquisition Proposal constitutes a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.38
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, Neither the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do nor any of the foregoing byits subsidiaries shall, nor shall the Company or any of its Subsidiaries subsidiaries authorize or encourage any of their respective officers, directors, employees, agents, accountants, counsel, investment bankers or financial advisors (collectively, “Representatives”) or affiliates (other than Parent or any of its subsidiaries, other than the Company or its subsidiaries, and their respective Representatives) to (and the Company shall advise all such transactions being referred Representatives, affiliates and employees that they are not so authorized) (i) directly or indirectly, initiate, solicit or encourage, or take any action to herein as "Acquisition Proposals");
facilitate the making of, any Takeover Proposal, or (ii) enter into, maintain, directly or continue indirectly engage in any discussions or negotiations with with, or provide any person in furtherance information or data to, or afford any access to the properties, books or records of such inquiries the Company or any subsidiary to, or otherwise assist, facilitate or encourage, any Person (other than Parent or any affiliate or associate thereof) relating to obtain an Acquisition any Takeover Proposal;
, or (iii) agree to approve or endorse any Acquisition Proposal;
(iv) enter into any agreementletter of intent, arrangement agreement in principle, acquisition agreement or understanding requiring it similar agreement relating to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionTakeover Proposal; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing contained in this Agreement Section 5.14 shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in or entering into discussions or negotiations with, any person or entity Person that makes an unsolicited written, bona fide proposal written Takeover Proposal if: (1) such action is taken prior to acquire obtaining the Company and/or its Subsidiaries pursuant to a mergerStockholder Approval or the Parent Stockholder Approval, consolidation, share exchange, tender offer, recapitalization, business combination (2) the Company Special Committee or other similar transaction, or any transaction involving the sale Board of a material portion of the assets Directors of the Company, but only to the extent that upon recommendation of the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent outside legal counsel counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law, (who 3) the Company Special Committee or the Board of Directors of the Company, upon recommendation of the Company Special Committee, after consultation with an independent, nationally recognized financial advisor (which may be the Company's regularly engaged outside legal counselSpecial Committee Banker), determines in good faith that such a Takeover Proposal would constitute, or is reasonably likely to lead to, a Superior Proposal (as defined below); and (4) prior to taking such action the Company (x) provides prompt notice to Parent to the effect that it has a fiduciary obligation to do sois taking such action, provided that HK is given two days' prior (y) receives from such Person making the unsolicited bona fide written notice of its intentions to do sooffer or proposal an executed confidentiality agreement in reasonably customary form and approved by Parent, and (Cz) disclosing to complies with the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations provisions of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities lawsSection 5.14(b)(ii); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 2 contracts
Sources: Merger Agreement (Fidelity National Information Solutions Inc), Merger Agreement (Fidelity National Financial Inc /De/)
No Solicitation. (a) The parties acknowledge and agree that prior Until the earlier to October 15, 1999, occur of the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Effective Time or the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not toAgreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize or permit any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent, Merger Sub and Merger LLC), (A) solicit, initiate, make, knowingly facilitate or knowingly encourage (including by way of furnishing nonpublic information any inquiries, proposals or assistance), or take any other action to facilitate, any inquiries or proposals from any person offers that constitute, or may that would reasonably be expected to lead to, an acquisitionAcquisition Proposal, purchase(B) engage in, mergercontinue or otherwise participate in any discussions or negotiations with any Third Party regarding, consolidationfurnish to any Third Party information or provide to any Third Party access to the businesses, share exchangeproperties, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement personnel of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintainSubsidiaries, or continue discussions or negotiations otherwise cooperate in any way with any person Third Party, relating to, in furtherance connection with or for the purpose of such inquiries encouraging or to obtain facilitating, an Acquisition Proposal;
, or (iii) agree to or endorse any Acquisition Proposal;
(ivC) enter into any letter of intent, agreement, arrangement Contract, commitment or understanding agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement to the extent permitted by Section 5.3(b)) or enter into any letter of intent, agreement, Contract, commitment or agreement in principle requiring it or that would require the Company to modify, delay, abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this Agreement, or; and
(vii) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, (A) immediately cease and terminate any existing solicitation, encouragement, discussion, negotiation or communication with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal and (B) use commercially reasonable efforts to cause any such Third Party (and its Representatives) in possession of confidential information about any Acquired Corporation to return or destroy all such information. Any violation of this Section 5.3 by any of the Company’s Subsidiaries or any Representatives of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company.
(b) Notwithstanding the provisions of Section 5.3(a), if, at any time prior to the time the Stockholder Approval is obtained, (i) the Company receives a bona fide written Acquisition Proposal, (ii) such Acquisition Proposal did not result from a breach of Section 5.3(a), (iii) the Board of Directors of the Company reasonably determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal and (iv) the Board of Directors of the Company reasonably determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failing to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, then the Company may, prior to obtaining the Stockholder Approval, (A) furnish information and data with respect to the Company and the Company Subsidiaries to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel of the Company and its Subsidiaries, and (B) enter into, maintain and participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations; provided, however, that the Company (1) shall not, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives not to, furnish any information or data concerning the Company or the Company Subsidiaries to such Third Party except pursuant to an Acceptable Confidentiality Agreement, and (2) shall, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, cease concurrently with the time such information or data is provided or made accessible to such Third Party, provide to Parent any information or data concerning the Company or the Company Subsidiaries or access provided to such Third Party which was not previously provided to Parent.
(c) From and after the date of this Agreement, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) orally and in writing notify Parent of any inquiries, proposals or offers received by, any information requested from, or any negotiations or discussions sought to be initiated or continued with, the Company, any of its Subsidiaries or any Representatives of the Company or any of its Subsidiaries, in each case, in connection with, or which could reasonably be expected to lead to, an Acquisition Proposal, which notification shall identify the name of the Third Party making such inquiry, proposal or request or seeking such negotiations or discussions and the material terms and conditions of such inquiry, proposal or request and include copies of all activitieswritten materials provided to the Company, its Subsidiaries or any Representatives of the Company or its Subsidiaries that describe any terms and conditions of any inquiry, proposal or request (and any subsequent changes to such terms and conditions). The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developments, discussions or negotiations as regarding any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration), including by providing a copy of documentation relating thereto that is exchanged between the Third Party (or its Representatives) making such date. Acquisition Proposal and the Company (or its Subsidiaries or Representatives of the Company or its Subsidiaries) within twenty-four (24) hours after the receipt thereof.
(d) The Company agrees not to release or permit the release of any Third Party from, or to permit any Third Party to benefit from any waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Company or any Company Subsidiary is a party (a “Standstill Release/Waiver”); provided, that the Company may provide a Standstill Release/Waiver to the limited extent necessary to permit a Third Party to make a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving an Acquisition Proposal to the extent the Board of Directors of the Company determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to provide such a Standstill Release/Waiver would be inconsistent with the directors’ fiduciary duties under applicable Law.
(e) Nothing contained in this Section 5.9(d) is intended to prevent, deter, 5.3 or Section 5.4 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9 and/or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Board or of Directors of the Special Committee from taking any action permitted by Section 5.9(b) above and Company, after consultation with outside legal counsel, the taking failure to do so would be reasonably likely to cause the Board of Directors of the Company to violate its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that any such action disclosure (other than issuance by the Company of a “stop, look and listen communication” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Board of Directors of the Company with respect to this Agreement or an Acquisition Proposal shall be deemed to be an Adverse Change Recommendation unless the Board of Directors of the Company, in connection with such communication, publicly states that its recommendation with respect to this Agreement has not constitute a breach changed or refers to the prior recommendation of the Company’s Board of Directors with respect to this provisionAgreement, without disclosing any Adverse Change Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, From the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 date hereof until the earlier of any termination of this AgreementAgreement in accordance with its terms or the Merger Effective Time, the Company and its affiliates shall noteach Member shall, and shall instruct cause his, her or its Affiliates and Representatives (collectively, "Member Representatives") to, immediately cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Splitco Takeover Proposal, and use reasonable best efforts to obtain the Company return from all such Persons or cause the destruction of all copies of confidential information previously provided to such Persons by such Member or his, her or its Member Representatives and not previously returned or destroyed. No Member shall, and each Member shall cause his, her or its Representatives not to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, cause, facilitate or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, non-public information) any inquiries or proposals from any person that constitute, or may could reasonably be expected to lead to, an acquisitionany Splitco Takeover Proposal, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue participate in any discussions or negotiations with any person in furtherance of such inquiries third party regarding any Splitco Takeover Proposal or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreementletter of intent or agreement related to any Splitco Takeover Proposal. If Liberty has not otherwise notified Splitco and DIRECTV of such events, arrangement in addition to the Members' other obligations as set forth in this Section 2(c), the Members shall promptly advise Splitco and DIRECTV, orally and in writing, and in no event later than 24 hours after receipt, if any proposal, offer, inquiry or understanding requiring it to abandonother contact is received by, terminate or fail to consummate the Merger any information is requested from, or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations are sought to be initiated or continued with, any person Member (for the avoidance of doubt, solely in his, her or entity that makes an unsolicited writtenits capacity as a stockholder) in respect of any Splitco Takeover Proposal, bona fide proposal and shall, in any such notice to acquire Splitco and DIRECTV, indicate (i) the Company and/or its Subsidiaries pursuant to a mergeridentity of the Person making such proposal, consolidation, share exchange, tender offer, recapitalization, business combination inquiry or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, contact and (Cii) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and any proposals or offers or the identity of the person making it. The Company also will promptly notify HK nature of any change to inquiries or modification contacts (and shall include with such notice copies of any written materials received from or on behalf of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent thatPerson relating to such proposal, as of October 15offer, 1999, the Company, any of its affiliates inquiry or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shallrequest), and thereafter shall cause its affiliates promptly keep Splitco and DIRECTV fully informed of all material developments affecting the Company Representatives to, cease any status and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking terms of any such action proposals, offers, inquiries or requests (and each Member shall not constitute a breach provide Splitco and DIRECTV with copies of this provisionany additional written materials received that relate to such proposals, offers, inquiries or requests) and the status of any such discussions or negotiations.
Appears in 2 contracts
Sources: Voting and Right of First Refusal Agreement (Liberty Entertainment, Inc.), Voting and Right of First Refusal Agreement (Liberty Entertainment, Inc.)
No Solicitation. (a) The parties acknowledge Company represents and agree warrants to, and covenants and agrees with, Parent and Purchaser that prior to October 15, 1999, neither the Company and nor any of its affiliates and subsidiaries has any agreement, arrangement or understanding with any potential third party acquiror that, directly or indirectly, would be violated, or require any payments, by reason of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15execution, 1999 until the termination delivery and/or consummation of this Agreement. The Company shall, the Company and it shall cause its subsidiaries and its affiliates and their officers, directors, employees, investment bankers, attorneys and other agents and representatives to, immediately cease any existing discussions or negotiations with any person other than Parent or Purchaser (a "Third Party") heretofore conducted with respect to any Acquisition Transaction (as hereinafter defined). The Company shall not, and it shall instruct the Company Representatives cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys and other agents and representatives not to:
(i) , directly or indirectly indirectly, (w) solicit, initiate, continue, facilitate or encourage (including by way of furnishing nonpublic information or assistance)disclosing non-public information) any inquiries, proposals or offers from any Third Party with respect to, or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may could reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any acquisition or other similar transaction involving any purchase of a material portion of the assets (other than in the ordinary course of business) or business of, or any securities ofsignificant equity interest in (including by way of a tender offer), or any merger, consolidation or business combination with, or any public announcement of a proposal, planrecapitalization or restructuring, or intention to do any of the foregoing bysimilar transaction involving, the Company or any of its Subsidiaries subsidiaries (such transactions the foregoing being referred to herein collectively as an "Acquisition ProposalsTransaction");
, or (iix) negotiate, explore or otherwise communicate in any way with any Third Party with respect to any Acquisition Transaction, (y) enter into, maintain, approve or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into recommend any agreement, arrangement or understanding requiring it the Company to abandon, terminate or fail to consummate the Offer and/or the Merger or any other transaction contemplated hereby, or (z) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Company Board of the Offer, the Merger or this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement herein shall prohibit prevent the Company Board or the Special Committee from (A) furnishing information totaking, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders shareholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by . The Company will promptly notify Parent of the rules or regulations receipt of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding proposal relating to an Acquisition Transaction. Notwithstanding anything to the contrary in this Agreementthe foregoing, the Company Board's may, in response to an unsolicited written proposal with respect to an Acquisition Transaction involving the acquisition of all of the Shares (or all or substantially all of the Special Committee's assets of the Company and its subsidiaries) from a Third Party (i) furnish or disclose non-public information to such Third Party and (ii) negotiate, explore or otherwise communicate with such Third Party, in each case only if (a) after being advised (x) by its outside counsel with respect to its fiduciary obligations and (y) with respect to the financial terms of any such proposed Acquisition Transaction, the Board of Directors of the Company determines in good faith by a majority vote that taking such action is necessary in the exercise of its rights fiduciary obligations under applicable law (the proposal with respect to an Acquisition Transaction meeting the requirements of this clause (Aa), a "Superior Proposal") and (Bb) prior to furnishing or disclosing any non-public information to, or entering into discussions or negotiations with, such Third Party, the Company receives from such Third Party an executed confidentiality agreement (Cwhich the Company is hereby expressly permitted to negotiate with such party) above with terms no less favorable in the aggregate to Company than those contained in the Confidentiality Agreement, but which confidentiality agreement shall not constitute a breach provide for any exclusive right to negotiate with the Company or any payments by the Company and need not contain any "standstill" or similar provisions. In addition, the Company Board may approve or recommend (and, in connection therewith withdraw or modify its approval or recommendation of the Offer, this AgreementAgreement or the Merger) a Superior Proposal and may terminate this Agreement solely to enter into a definitive agreement with respect to a Superior Proposal provided, however, that Company shall not, and shall cause its affiliates not to, enter into a definitive agreement with respect to a Superior Proposal unless the Company concurrently terminates this Agreement in accordance with the terms hereof and pays any Termination Fee required under Section 8.3(b) and agrees to pay any other amounts required under such Section 8.3(b).
(cb) The Company will shall promptly notify HK (but in any event within one business day of the Company becoming aware of same) advise Parent of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, by the Company, any of its affiliates subsidiaries or any of the Company's bankers, attorneys or other agents or representatives of any written inquiries or proposals relating to an Acquisition Transaction and any actions taken pursuant to Section 6.10(a), and shall promptly (but in any event within one business day of the Company Representative is engaged in discussions becoming aware of same) provide Parent with a copy of any such written inquiry or negotiations proposal. The Company shall keep Parent reasonably informed of the status and content of and material developments (including the calling of meetings of the Company Board to take action with any person or entity (other than HKrespect to such Acquisition Transaction) with respect to any proposal discussions regarding any Acquisition Transaction with a Third Party. The Company agrees that does it will not at such time constitute enter into any agreement with respect to a Superior Proposal as defined in (b) aboveunless and until Parent has been given notice of the identity of the parties making such Superior Proposal, the Company shall, material terms thereof and shall cause its affiliates and material developments referred to in the Company Representatives to, cease any and all activities, discussions or negotiations as of preceding sentence at least two business days prior to the entering into such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionagreement.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Scientific Co), Merger Agreement (Pacific Scientific Co)
No Solicitation. (a) The parties acknowledge Company represents and agree warrants to, and covenants and agrees with, Parent and the Purchaser that prior neither the Company nor any of the Subsidiaries has any agreement, arrangement or understanding with any potential acquirer that directly or indirectly, would be violated, or require any payments, by reason of the execution, delivery and/or consummation of this Agreement and the Stock Option Agreement. The Company shall, and shall use its commercially reasonable best efforts to October 15cause the Subsidiaries and the officers, 1999directors, employees, investment bankers, attorneys and other agents and representatives of the Company and its affiliates and the Subsidiaries to, immediately cease any existing discussions or negotiations with any person (including a "person" as defined in Section 13(d)(3) of the Exchange Act) other than Parent or the Purchaser (a "Third Party") heretofore conducted with respect to any Acquisition Transaction (as hereinafter defined). The Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct use its commercially reasonable best efforts to cause the Subsidiaries and the officers, directors, employees, investment bankers, attorneys and other agents and representatives of the - 21 - 22 Company Representatives and the Subsidiaries not to:
(i) , directly or indirectly indirectly, (x) solicit, initiate, continue, facilitate or encourage (including by way of furnishing nonpublic information or assistance)disclosing non-public information) any inquiries, proposals or offers from any Third Party with respect to, or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may could reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any acquisition or other similar transaction involving any purchase of a material portion of the assets or any securities business of, or any significant equity interest in (including by way of a tender offer), or any amalgamation, merger, consolidation or business combination with, or any public announcement of a proposal, planrecapitalization or restructuring, or intention to do any of the foregoing bysimilar transaction involving, the Company or any of its the Subsidiaries (such transactions the foregoing being referred to herein collectively as an "Acquisition ProposalsTransaction");
, or (iiy) negotiate, explore or otherwise communicate in any way with any Third Party with respect to any Acquisition Transaction or enter into, maintain, approve or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into recommend any agreement, arrangement or understanding requiring it the Company to abandon, terminate or fail to consummate the Offer and/or the Merger or any other transaction contemplated hereby or by this the Stock Option Agreement. Notwithstanding anything to the contrary in the foregoing, or
(v) authorize or permit the Company Representatives may in response to take any such action; provided, however, that prior an unsolicited written proposal with respect to an Acquisition Transaction involving the approval acquisition of all of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board Shares (or the Special Committee from (A) furnishing information to, and engaging in discussions all or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion substantially all of the assets of the CompanyCompany and the Subsidiaries) from a Third Party (which proposal (1) is not subject to a financing condition and is from a person that a nationally recognized investment bank advises in writing is financially capable of consummating such proposal or (2) is subject to financing, but is from a person that a nationally recognized investment bank advises in writing is financially capable of achieving such financing to consummate such proposal), (i) furnish or disclose non-public information to such Third Party and (ii) negotiate, explore or otherwise communicate with such Third Party, in each case only if (A) after being advised in writing by its outside counsel with respect to its fiduciary obligations to the extent that Shareholders under applicable Law, the Board of Directors of the Company Board or the Special Committee determines in good faith, after consulting faith that taking such action is necessary in the exercise of its fiduciary obligations under applicable Law (the proposal with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation respect to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal an Acquisition Transaction meeting such criteria, requirements being a "Superior Proposal"), provided, that (B) prior to taking furnishing or disclosing any non-public information to, or entering into discussions or negotiations with, such actionThird Party, the Company notifies HK of its intentions and obtains receives from such Third Party an executed confidentiality agreement from with terms no less favorable in the appropriate parties substantially similar aggregate to the Company than those contained in the Confidentiality Agreement, (B) failing but which confidentiality agreement shall not provide for any exclusive right to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if negotiate with the Company Board or any payments by the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, Company and (C) disclosing the Company advises Parent of all such non-public information delivered to such Third Party concurrently with such delivery; provided, however, that the Company shall not, and shall cause its affiliates not to, enter into a definitive agreement with respect to a Superior Proposal unless the Company first complies with Section 6.07(b) hereof, including the last sentence thereof, and then unless (I) the Company concurrently terminates this Agreement in accordance with the terms hereof, pays any Termination Fee required under Section 8.03(b) and agrees to pay any other amounts required under such Section 8.03(b) and (II) such agreement permits the Company, subject to the fiduciary duties of the Board of Directors, to terminate it if it receives a Superior Proposal, such termination and related provisions to be on terms no less favorable to the Company, including as to fees and reimbursement of expenses, as those contained herein.
(b) The Company shall promptly (but in any event within one business day of the Company becoming aware of same) advise Parent of the receipt by the Company, any of the Subsidiaries or any of the Company's shareholders bankers, attorneys or other agents or representatives of any inquiries or proposals relating to an Acquisition Transaction and any actions taken pursuant to Section 6.07(a). The Company shall promptly (but in any event within three business days of the Company becoming aware of same) provide Parent with a position contemplated by Rules 14d-9 copy of any such inquiry or proposal in writing and 14e-2 promulgated under the Exchange Act a written statement with respect to any tender offersuch inquiries or proposals not in writing, which statement shall include the identity of the parties making such inquiries or proposal and the material terms thereof; provided, however, that the Company shall not be obligated to provide a copy of, or taking a written statement with respect to, any other legally required actionsuch inquiry if, or any action required after being advised in writing by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitationits outside legal counsel with respect to its fiduciary obligations, the making Board of public disclosure as may be Directors of the Company determines that not providing such copy or written statement is necessary or advisable to allow the Board of Directors of the Company to fulfill its fiduciary duties to the Shareholders under applicable securities laws)Law. The Company shall, from time to time, promptly (but in any event within one business day of the Company becoming aware of same) inform Parent of the status and content of and material developments (including the calling of meetings of the Board of Directors of the Company to take action with respect to such Acquisition Transaction) with respect to any discussions regarding any Acquisition Transaction with a Third Party; andprovided, provided furtherhowever, that notwithstanding anything the Company shall not be - 22 - 23 obligated to make such disclosure if, after being advised in writing by its outside legal counsel with respect to its fiduciary obligations, the Board of Directors of the Company determines that not providing such disclosure is necessary to allow the Board of Directors of the Company to fulfill its fiduciary duties to the contrary in this AgreementShareholders under applicable Law. For the avoidance of doubt, the Company Board's or agrees that it will not enter into any agreement with respect to a Superior Proposal unless and until Parent has been given the Special Committee's exercise opportunity at least six business days prior to the entering into such agreement to match the terms of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreementsuch agreement.
(c) The Company will promptly notify HK has obtained the oral agreement of each member of the receipt Board of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity Directors of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations executive officers that each such person will comply with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as provisions of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision6.07.
Appears in 2 contracts
Sources: Merger Agreement (Impact Systems Inc /Ca/), Merger Agreement (Voith Sulzer Acquisition Corp)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 the date hereof until the Effective Time or the termination of this AgreementAgreement in accordance with Section 7.1, neither the Company, nor any of its respective officers, directors, employees, representatives, agents or affiliates (including any investment banker, attorney or accountant retained by the Company and its affiliates shall not, and shall instruct or the Special Committee but excluding any affiliate of the Company Representatives that is not to:
controlled by the Company (iother than directors of the Company)) will directly or indirectly solicit, initiate, solicit or knowingly encourage (including by way of furnishing nonpublic non-public information or assistance), or take any other action to facilitatewith the intention of facilitating, any inquiries or proposals from the making or submission of any person that constituteAcquisition Proposal (as defined below), or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination enter into or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, maintain or continue discussions or negotiations negotiate with any person or group in furtherance of such inquiries or to obtain or induce any person or group to make or submit an Acquisition Proposal;
(iii) , or agree to or endorse any Acquisition Proposal;
(iv) enter into , or assist or participate in, facilitate or encourage, any agreement, arrangement effort or understanding requiring it to abandon, terminate or fail to consummate the Merger or attempt by any other transaction contemplated by this Agreementperson or group to do or seek any of the foregoing, or
(v) or authorize or permit the Company Representatives any of its officers, directors or employees or any of its affiliates or any investment banker, financial advisor, attorney, accountant or other representative or agent retained by it to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing contained in this Agreement shall -------- ------- prohibit the Board of Directors of the Company Board or the Special Committee or the Representatives from (A) furnishing information to, and engaging in to or entering into discussions or negotiations with, with any person or entity group that makes an unsolicited written, bona fide Acquisition Proposal, if, and only to the extent that (i) the Special Committee determines in good faith by a majority vote, after consultation with the Special Committee Financial Advisor (or other nationally reputable financial advisor) and with independent legal counsel that such proposal is, or is reasonably likely to acquire lead to, a Superior Proposal (provided that the Special Committee or its advisors shall be permitted to contact such third party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the likelihood of consummation), (ii) the Special Committee determines in good faith by a majority vote after consultation with its outside legal counsel that the failure to negotiate, or otherwise engage in discussions, with such third party would be inconsistent with the Board's fiduciary duties under applicable law, and (iii) such person or group, prior to the disclosure of any non-public information, enters into a confidentiality agreement with the Company that is not, in any material respect, less restrictive as to such person or group than the Confidentiality Agreement (as defined in Section 5.3) in terms of confidentiality and standstill restrictions and which does not contain exclusivity provisions which would prevent the Company from complying with its obligations hereunder. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.1 by any officer, director, employee or affiliate of the Company (except an affiliate who is not controlled by the Company (other than a director)) or any investment banker, attorney, accountant or other advisor, agent or representative of the Company or the Special Committee, whether or not such person is purporting to act on behalf of the Company or its directors or otherwise, shall be deemed to be a breach of this Section 5.1 by the Company.
(b) Except as expressly permitted by this Section 5.1, neither the Board of Directors of the Company nor the Special Committee (or any other committee thereof) shall (i) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (ii) cause the Company to accept such Acquisition Proposal and/or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal; provided, however, ---------------------- -------- ------- that the Board of Directors of the Company (acting on the recommendation of the Special Committee) may take such actions if, and only to the extent that (A) such Acquisition Proposal is a Superior Proposal, (B) the Special Committee determines in good faith by a majority vote, after consultation with its Subsidiaries pursuant outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duty of the Board of Directors of the Company under applicable law, (C) the Company is not in breach of this Section 5.1 and (D) in the case of clause (ii) above, (I) the Company shall, prior to or simultaneously with the taking of such action, have paid or pay to Newco or its designee the Termination Fee and Expense Reimbursement referred to in Section 7.3, and (II) the Company shall have complied with its obligations under Section 7.1(h).
(c) In addition to the obligations of the Company set forth in Sections (a) and (b) above, the Company shall promptly (and in any event, within 24 hours) advise Newco orally and in writing of any request for information or the submission or receipt of any Acquisition Proposal, or any inquiry with respect to or which could lead to any Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the person making any such request, Acquisition Proposal or inquiry and its response or responses thereto. The Company will keep Newco fully informed of the status and material terms (including amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry. The Company will immediately cease and cause to be terminated any activities, discussions or negotiations existing on the date of this Agreement with any parties conducted heretofore with respect to any of the foregoing, provided that this sentence will not make the provisions of Sections 5.1(a) or (b) inapplicable to a subsequent proposal by any such party.
(d) As used herein, "Acquisition Proposal" means an -------------------- inquiry, offer or proposal regarding any of the following (other than the Transactions contemplated by this Agreement) involving the Company: (i) any merger, consolidation, share exchange, tender offerrecapitalization, recapitalizationliquidation, dissolution, business combination or other similar transaction; (ii) any sale, or any transaction involving the sale of a material portion of the assets of the Companylease, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market mortgage, pledge, transfer or other body (including, without limitation, the making disposition of public disclosure as may be necessary 15% or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise more of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.the
Appears in 1 contract
No Solicitation. (a) The parties acknowledge During the period from the date of this Agreement and agree that prior to October 15, 1999, continuing until the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until earlier of the termination of this AgreementAgreement pursuant to its terms or the Closing, other than with respect to the Merger and the other Transactions, the Company and its affiliates shall not, and shall instruct the Company Representatives cause its Subsidiaries not to:
, and shall direct its stockholders, employees, agents, officers, directors, representatives and advisors (collectively, in each case in their capacity as such, “Representatives”) not to, directly or indirectly: (i) directly or indirectly solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action respond to facilitate, any inquiries or proposals from any person that constituteby, or may provide any information to, any Person (other than Parent and its agents, representatives, advisors) concerning any merger, sale of ownership interests and/or assets of the Company, recapitalization or similar transaction (each, a “Company Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination to a Company Business Combination; or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to commence, continue or endorse renew any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the due diligence investigation regarding a Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itBusiness Combination. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) aboveIn addition, the Company shall, and shall cause its affiliates Subsidiaries and the Company Stockholders to, and shall cause their respective Representatives to, immediately cease any and all activities, existing discussions or negotiations as with any Person with respect to any Company Business Combination excluding the Merger and the other Transactions. The provisions of this Section 6.10(a) are intended to be for the benefit of, and enforceable by each of Verizon and Hearst, notwithstanding any waiver by Parent of the Company’s obligations pursuant to this Section 6.10(a), and each of Verizon and Hearst shall be a third-party beneficiary of this Section 6.10(a).
(b) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, other than with respect to the Merger and the other Transactions, Parent, Merger Sub I and Merger Sub II shall not, and shall direct their respective Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company, the Company Stockholders, CM Partners, LLC and their respective Representatives) concerning any merger, purchase of ownership interests or assets of Parent, recapitalization or similar business combination transaction (each, a “Parent Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a Parent Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a Parent Business Combination. Parent, Merger Sub I and Merger Sub II shall, and shall cause their respective Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any Parent Business Combination.
(c) Each Party shall promptly (and in no event later than 24 hours after becoming aware of such date. Nothing inquiry, proposal, offer or submission) notify the other Parties (and in this Section 5.9(dthe case of Parent’s receipt of a Parent Business Combination proposal, Parent shall also provide notice to the Company) is intended if it or, to preventits Knowledge, deterany of its or its Representatives receives any inquiry, proposal, offer or prohibit submission with respect to a Company Business Combination or Parent Business Combination, as applicable (including the Company Board identity of the Person making such inquiry or submitting such proposal, offer or submission), after the Special Committee from taking any action permitted by Section 5.9(b) above execution and the taking of any such action shall not constitute a breach delivery of this provisionAgreement. If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to a Company Business Combination or Parent Business Combination, as applicable, such Party shall provide the other Parties with a copy of such inquiry, proposal, offer or submission (and in the case of Parent’s receipt, Parent shall also provide copies to the Company).
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999During the Interim Period, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct cause the Company Company’s Subsidiaries not to, and shall direct their respective Representatives not to:
, directly or indirectly, other than as contemplated by this Agreement: (i) directly or indirectly solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action respond to facilitate, any inquiries or proposals from any person that constituteby, or may provide any information to, any Person (other than SPAC and its Representatives) concerning any merger, consolidation, sale of ownership interests and/or substantial portion of the assets, recapitalization or similar transaction of, by or involving the Company, HoldCo, New PubCo or Merger Sub (each, a “Company Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination to a Company Business Combination; or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to commence, continue or endorse renew any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the due diligence investigation regarding a Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itBusiness Combination. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates the Company’s Subsidiaries to, and the Company shall cause their respective Representatives to, immediately cease any and all activities, existing discussions or negotiations as with any Person with respect to any Company Business Combination.
(b) During the Interim Period, SPAC shall not, and shall cause the SPAC Sponsor not to, and shall direct its Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company Parties and their respective Representatives) concerning any merger, consolidation, purchase of ownership interests or assets, recapitalization or similar business combination transaction of, by or involving SPAC (each, a “SPAC Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a SPAC Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a SPAC Business Combination. SPAC shall, and shall cause its Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any SPAC Business Combination.
(c) Each Party shall promptly (and in no event later than 24 hours after becoming aware of such dateinquiry, proposal, offer or submission) notify the other Parties if it or, to its Knowledge, any of its or its Representatives receives any inquiry, proposal, offer or submission with respect to a Company Business Combination or SPAC Business Combination, as applicable, after the execution and delivery of this Agreement. Nothing in this Section 5.9(d) is intended If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to preventa Company Business Combination or SPAC Business Combination, deteras applicable, or prohibit such Party shall keep the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking other Parties reasonably informed of any material developments with respect to such action shall not constitute inquiry, proposal, offer or submission. Notwithstanding anything to the contrary, any Party may respond to any unsolicited proposal regarding a breach Company Business Combination or SPAC Business Combination by stating only that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide any information related to such Party or any of this provisionits Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning a Company Business Combination or SPAC Business Combination, as applicable.
Appears in 1 contract
Sources: Business Combination Agreement (Rose Hill Acquisition Corp)
No Solicitation. (a) The parties acknowledge Unless and agree that until this Agreement shall have been terminated prior to October 15the Closing Time pursuant to and in compliance with Section 9.2 hereof, 1999, neither the Parent nor the Company and shall (whether directly or indirectly through its affiliates and respective advisors, agents or other intermediaries), nor shall the Company Representatives shall be permitted or the Parent authorize or permit any of its respective officers, directors, agents, employees, representatives or advisors to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), information) or take any other action to facilitatefacilitate the submission of any inquiries, any inquiries proposals or proposals offers (whether or not in writing) from any person that constitute(other than the Parent or the Company, as the case may be, and its respective affiliates) relating to (A) any acquisition or purchase of any of the assets of the Company or the Parent, as the case may be, or of any class of equity securities of the Company or Parent, as the case may be (other than the securities as contemplated in the Placement), B) any tender offer (including a self tender offer) or exchange offer, (C) any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may be, or (D) any other transaction the consummation of which would or would reasonably be expected to lead toimpede, an acquisitioninterfere with, purchase, merger, consolidation, share exchange, recapitalization, business combination prevent or materially delay the Merger or which would or would reasonably be expected to materially dilute the benefits to the other similar transaction involving any material portion Party hereto of the assets or any securities oftransactions contemplated by this Agreement (collectively, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
, or agree to, recommend or endorse any Acquisition Proposals, (ii) enter into, maintain, into or continue discussions or negotiations with execute any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offerof the foregoing or (iii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or taking furnish to any other legally required actionperson any information with respect to its business, properties or assets in connection with the foregoing, or otherwise cooperate in any action required way with, or participate in or assist, facilitate, or encourage, any effect or attempt by the rules or regulations of any self-regulating securities exchange, market or other body person (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, other than the Company Board's or the Special Committee's exercise Parent, as the case may be, and its respective affiliates) to do or seek any of its rights under clause (A), (B) the foregoing. If either the Parent or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal is contacted by a third party with respect to an Acquisition Proposal, it shall immediately notify the terms and conditions other Party hereto of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal third party and the terms and conditions thereofnature of the Acquisition Proposal.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 1 contract
Sources: Merger Agreement (Intrac Inc)
No Solicitation. (a) The parties acknowledge and agree that prior Prior to October 15the Termination Date, 1999each Stockholder, in its capacity as a stockholder of the Company and not in any other capacity, agrees that neither it nor any of its affiliates officers and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall notdirectors shall, and that it shall instruct the Company Representatives use its commercially reasonable efforts to cause its employees, agents and advisors (including any attorneys, financial advisors, investment bankers or accountants) not to:
, directly or indirectly: (i) directly or indirectly initiate, solicit, initiateknowingly encourage or otherwise facilitate the making, submission or announcement of, any Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regarding, or encourage (including by way of furnishing furnish to any Person any nonpublic information or assistance)of the Company with respect to, or take any other action to facilitate, facilitate any inquiries regarding or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion the making of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
, or (iviii) enter into any letter of intent or similar document or any agreement, arrangement commitment or understanding requiring it contemplating or otherwise relating to abandonany Acquisition Proposal or a transaction contemplated thereby; provided, terminate or fail that at any time prior to consummate the adoption of the Merger or any other transaction contemplated Agreement by this Agreement, or
(v) authorize or permit the Company Representatives Stockholders (as defined in the Merger Agreement), so long as the Acquisition Proposal is not as a result of a breach of Section 5.2 of the Merger Agreement by the Company, each Stockholder may, in response to take a written Acquisition Proposal received by the Company, participate in discussions or negotiations with, request clarifications from, or furnish information to, any Person which makes such actionan Acquisition Proposal, but only if the Company is permitted to participate in discussions or negotiations with, request clarifications from, or furnish information to, such Person in accordance with the terms of Section 5.2 of the Merger Agreement; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement Section 2.01 shall prohibit the Company Board prevent any Stockholder, in his or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.her capacity
Appears in 1 contract
Sources: Voting Agreement (Animal Health International, Inc.)
No Solicitation. (a) The parties acknowledge Company agrees that it shall immediately cease and agree that prior cause to October 15be terminated all existing discussions, 1999negotiations and communications with any Persons with respect to (i) any tender or exchange offer involving the Company, (ii) any proposal for a merger, consolidation or other business combination involving the Company, (iii) any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the business or assets of, the Company, (iv) any proposal or offer with respect to any recapitalization or restructuring with respect to the Company or (v) any proposal or offer with respect to any other transaction similar to any of the foregoing with respect to the Company other than the Transactions contemplated by this Agreement (each an "Acquisition Proposal"). Except as provided in Section 5.2(b), the Company shall not and shall not authorize or permit its officers, directors, employees, investment bankers, attorneys, accountants or other agents (collectively, "Representatives") to directly or indirectly (i) initiate, solicit or encourage, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal, or (iii) in the event of an unsolicited Acquisition Proposal for the Company, engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent or any of its affiliates and or representatives) relating to any Acquisition Proposal. The Company shall promptly notify Parent if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with the Company Representatives or its Representatives, in each case, in connection with an Acquisition Proposal or the possibility or consideration of making an Acquisition Proposal, which notice shall identify the name of the Person making such proposal or request or seeking such negotiations or discussions, the material terms and conditions of any offer or proposal and any subsequent changes to such terms and conditions. Any violation of this Section 5.2 by any of the Company's Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company or otherwise, shall be permitted deemed to take be a material breach of this Agreement by the actions proscribed in clauses (b)(i) through (v) belowCompany.
(b) From and after October 15, 1999 until Notwithstanding the termination of this Agreementforegoing, the Company and may furnish information concerning its affiliates shall notbusiness, and shall instruct the Company Representatives not to:
(i) directly properties or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take assets to any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries Person pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving confidentiality agreement with terms no less favorable in the sale of a material portion of the assets of the Company, but only aggregate to the extent that the Company Board or the Special Committee determines than those contained in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committeedated April 29, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel)2003, determines in good faith that it has a fiduciary obligation to do soentered into between SHPS, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates Inc. and the Company Representatives to(together, cease any the "Confidentiality Agreement") and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above may negotiate and the taking of any such action shall not constitute a breach of this provision.participate in
Appears in 1 contract
Sources: Merger Agreement (Landacorp Inc)
No Solicitation. The Company agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors, agents and representatives (a) The parties acknowledge including any investment banker, attorney or accountant retained by it or any of its Subsidiaries), and agree any party to a Stockholder Agreement shall, and that prior to October 15, 1999, the Company shall use reasonable efforts to cause its and its Subsidiaries’ other employees and affiliates and the Company Representatives shall be permitted not to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not authorize any of them to:
) directly or indirectly: (i) directly or indirectly solicit, initiate, encourage, knowingly facilitate or encourage induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (including by way of furnishing as defined in Section 5.3(f)) with respect to itself, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information or assistance)with respect to, or take any other action to facilitate, facilitate any inquiries or proposals from the making of any person proposal that constitute, constitutes or may reasonably be expected to lead to, an acquisitionany Acquisition Proposal with respect to itself, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to approve, endorse or endorse recommend any Acquisition Proposal;
Proposal with respect to itself (except to the extent specifically permitted pursuant to Section 5.3(d)), or (iv) enter into any agreement, arrangement letter of intent or understanding requiring it to abandon, terminate or fail to consummate the Merger similar document or any other Contract or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act thereby with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making ititself. The Company also will promptly notify HK and its Subsidiaries and any of their respective officers, directors, agents and representatives (including any change to investment banker, attorney or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, accountant retained by it or any of its Subsidiaries), and any party to a Stockholder Agreement will immediately cease, and the Company shall use reasonable efforts to cause its and its Subsidiaries’ other employees and affiliates or to cease, any Company Representative is engaged in and all existing activities, discussions or negotiations with any person or entity third parties (other than HKCEP, Merger Sub, and their representatives) conducted heretofore with respect to any proposal that does not at such time constitute a Superior Acquisition Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended with respect to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionitself.
Appears in 1 contract
No Solicitation. SCI covenants and agrees that, between the date of this Agreement and the earlier of (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
Closing or (b) From and after October 15, 1999 until the termination of this Agreement, the Company and neither SCI nor any of its affiliates shall notdirectors, and shall instruct the Company Representatives not to:
officers, stockholders, affiliates, employees, agents, or representatives will (i) directly or indirectly solicit, initiate, consider, respond to, encourage or encourage (including by way of furnishing nonpublic information or assistance)accept, or take any other action to facilitatefacilitate the making of, any inquiries inquiries, proposals or proposals offers from any person that constituteindividual or entity (other than MTI and Merger Sub) relating to, or may that could reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any acquisition or other similar transaction involving purchase of all or any material portion of the assets or any securities ofequity interests of SCI, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement agreement in principle, letter of intent, or understanding requiring it similar instrument, including any exclusivity agreement, with respect to, or approve or resolve to abandonapprove any proposal with respect to, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreementagreement, or
(v) authorize agreement in principle, letter of intent, or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information similar instrument relating to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offerbusiness combination, recapitalization, business combination reorganization or other similar transactionextraordinary business transaction involving or otherwise relating to SCI, or (iii) participate in any transaction involving the sale of a material portion discussions, conversations, negotiations or other communications regarding, or furnish to any other individual or entity any information with respect to, or otherwise cooperate in any way with, assist or participate in, or facilitate or encourage any effort or attempt by any other individual or entity to seek to do any of the assets of the Companyforegoing. SCI immediately shall cease and cause to be terminated all existing discussions, but only to the extent that the Company Board or the Special Committee determines in good faithconversations, after consulting negotiations and other communications with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act persons conducted heretofore with respect to any tender of the foregoing. SCI shall notify MTI promptly if any such proposal or offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market inquiry or other body (includingcontact with any individual or entity with respect thereto, without limitationis made and shall, in any such notice to MTI, indicate in reasonable detail the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK identity of the receipt of any Formal Acquisition Proposalindividual or entity making such proposal, offer, inquiry or contact and the terms and conditions of such proposal and proposal, offer, inquiry or other contact. SCI agrees not to, without the identity prior written consent of the person making it. The Company also will promptly notify HK of MTI, release any change to individual or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent thatentity from, as of October 15, 1999, the Companyor waive any provision of, any of its affiliates confidentiality or any Company Representative standstill agreement to which SCI is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionparty.
Appears in 1 contract
No Solicitation. a. Subject to (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From from and after October 15the Bankruptcy Court's approval of the Overbid Procedures) Sellers' right to (i) receive an offer for an Alternative Transaction pursuant to the Overbid Procedures, 1999 (ii) tender to IHF the Overbid Fee, and (iii) terminate this Agreement pursuant to Section 11.2.g. and contemporaneously accept an Alternative Transaction, from the date of this Agreement until the termination time of this AgreementClosing, the Company and its affiliates each Seller shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly indirectly, through any officer, director, stockholder, employee, agent, financial advisor, banker or other representative, or otherwise, solicit, initiate, or encourage the submission of any proposal or offer from any Person (including by way other than Buyer) relating to any acquisition or purchase of furnishing nonpublic information all or assistance), any material portion of the Assets or take any other action to facilitateequity interest in any Seller or its Subsidiaries, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalizationbusiness combination, business combination or other similar transaction involving with any material portion Seller or its Subsidiaries (an "Alternative Transaction") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate, or encourage, any effort or attempt by any other Person to do or seek any of the assets foregoing. Each Seller shall immediately communicate to Buyer the material terms of any such proposal or offer (and the identity of the party making such proposal) which it may receive and, if such proposal is in writing, such Seller shall promptly deliver a copy of such proposal to Buyer. Each Seller agrees not to release any securities third party from, or waive any provision of, any merger, consolidation confidentiality or business combination with, or any public announcement of standstill agreement to which it is a proposal, plan, or intention party. Each Seller shall immediately cease and cause to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue be terminated all existing discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act conducted heretofore with respect to any tender offerof the foregoing.
b. From the date of this Agreement until the time of Closing, Buyer and its Affiliates will not, and will not permit their respective officers, directors, employees, affiliates, stockholders and agents to, obtain information from or provide information to, engage in negotiations with, solicit, facilitate or otherwise engage in discussions with, or taking enter into any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations agreement with any person or entity Person (other than HKthe Sellers) with respect for the acquisition of all or part of such Person or such Person's assets, so long as the business of each person or such assets relate to any proposal that does not at such time constitute a Superior Proposal as defined the production, marketing or distribution of canned tuna or canned salmon in (b) above, the Company shallUnited States, and Buyer shall cause its affiliates and the Company Representatives not otherwise engage in any offer or indication of intent to procure or otherwise acquire, or enter into a business related to, cease any and all activitiesPerson or such Person's assets, discussions or negotiations so long as the business of such date. Nothing Person or such assets relate to the production, marketing or distribution of canned tuna or canned salmon assets in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionUnited States.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (International Home Foods Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15From the date hereof until the Closing Date or, 1999if earlier, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this AgreementAgreement in accordance with Article X, each of PACI, Merger Sub and the Company and its affiliates shall not, and shall instruct the Company their respective Representatives not to:
, (ia) directly make any proposal or indirectly offer that constitutes a Business Combination Proposal, (b) initiate, solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take engage in any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person Person with respect to, or provide any non-public information or data concerning PACI to any Person relating to, a Business Combination Proposal or afford to any Person access to the business, properties, assets, or personnel of PACI in furtherance of such inquiries or to obtain an Acquisition connection with a Business Combination Proposal;
, (iii) agree to or endorse any Acquisition Proposal;
(ivc) enter into any acquisition agreement, arrangement business combination, merger agreement, or understanding requiring it to abandonsimilar definitive agreement, terminate or fail to consummate the Merger any letter of intent, memorandum of understanding, or agreement in principle, or any other transaction contemplated by this Agreementagreement, or
relating to a Business Combination Proposal, (vd) authorize otherwise knowingly encourage or permit the Company Representatives to take facilitate any such actioninquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make a Business Combination Proposal, (e) approve, endorse, or recommend, or propose to approve, endorse, or recommend, a Business Combination Proposal, or (f) agree or otherwise commit to enter into or engage in any of the foregoing, in each case, other than with the Group Companies or any of their Representatives; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information tothat, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's obligations and restrictions set forth in this Section 8.10(a) and subsections (ii) through (iv) of Section 8.2(b) shall not apply where the prescribed treatment of such proposals, offers and similar non-public information or data or the Special Committee's exercise failure to make a Change in Recommendation or take such other action, as applicable, would be in contravention of its rights PACI’s, ▇▇▇▇▇▇ Sub’s or the Company’s, and each of their respective Representative’s, fiduciary duties under clause applicable Law (Ain which case, for the avoidance of doubt, such Party may take such action contemplated by this proviso notwithstanding anything herein to the contrary), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(cb) The Company will promptly notify HK of From and after the receipt of any Formal Acquisition Proposaldate hereof until the Closing Date or, if earlier, the terms termination of this Agreement in accordance with Article X, each of PACI, Merger Sub and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates instruct their respective Representatives to, immediately cease and terminate all discussions and negotiations with any Persons that may be ongoing with respect to a Business Combination Proposal (other than the Group Companies or any of their Representatives); provided, however, that, notwithstanding anything to the contrary in this Agreement, the obligations and restrictions set forth in this Section 8.10(b) and subsections (ii) through (iv) of Section 8.2(b) shall not apply where the prescribed treatment of such proposals, offers and similar non-public information or data or the failure to make a Change in Recommendation or take such other action, as applicable, would be in contravention of PACI’s, Merger Sub’s or the Company’s, and each of their respective Representative’s, fiduciary duties under applicable Law (in which case, for the avoidance of doubt, such Party may take such action contemplated by this proviso notwithstanding anything herein to the contrary).
(c) From and after the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X each of PACI, Merger Sub and the Company Representatives towill promptly, cease and in any and all activitiesevent within two Business Days of receipt, discussions notify the other Parties if it receives any proposal, offer or negotiations as of such date. Nothing in this Section 5.9(d) is intended submission with respect to prevent, deter, or prohibit a Business Combination Proposal after the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach date of this provisionAgreement.
Appears in 1 contract
Sources: Business Combination Agreement (PROOF Acquisition Corp I)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, From the Company and its affiliates and date hereof until the Company Representatives shall be permitted to take earlier of the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Closing or the termination of this AgreementAgreement in accordance with the terms hereof, the Company and its affiliates Pangaea agrees:
(a) that it shall not, and shall instruct the Company Representatives direct and use its best efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it) not to:
(i) directly or indirectly solicit, initiate, solicit or encourage (including by way of furnishing nonpublic information encourage, directly or assistance), or take any other action to facilitateindirectly, any inquiries or proposals from the making or implementation of any person that constituteproposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any purchase of all or other similar transaction involving any material significant portion of the assets or any equity securities of, Pangaea (any mergersuch proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, consolidation or business combination provide any confidential information or data to, or have any discussions with, or any public announcement of a proposal, planperson relating to an Acquisition Proposal, or intention otherwise facilitate any effort or attempt to do any of the foregoing by, the Company make or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain implement an Acquisition Proposal;
(iiib) agree that it will immediately cease and cause to be terminated any existing activities, discussions or endorse negotiations with any Acquisition Proposal;parties conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 5.2; and
(ivc) enter into that it will notify TradeQwest immediately of the identity of the potential acquiror and the terms of such person's or entity's proposal if any agreementsuch inquiries or proposals are received by, arrangement or understanding requiring it to abandonany such information is requested from, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreementsuch negotiations or discussions are sought to be initiated or continued with, or
(v) authorize or permit the Company Representatives to take any such actionit; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing contained in this Agreement Section 5.2 shall prohibit the Company Board or the Special Committee of Directors of Pangaea from (Ai) furnishing information to, and engaging in to or entering into discussions or negotiations with, with any person or entity that makes an unsolicited written, bona fide written proposal to acquire the Company and/or its Subsidiaries such company pursuant to a merger, consolidation, share exchange, tender offer, recapitalizationpurchase of a substantial portion of the assets, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Companyif, but and only to the extent that that, (A) the Company Board or the Special Committee of Directors of such company determines in good faithfaith that such action is required for the Board of Directors to comply with its fiduciary duties to shareholders, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation B) prior to furnish furnishing such information to, or engage in such entering into discussions or negotiations with, such person or entity, Pangaea provides written notice to TradeQwest to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines which Pangaea determined in good faith that it has a was required to be executed in order for the Board of Directors to comply with its fiduciary obligation duties to do soshareholders), provided that HK is given two days' prior written notice Pangaea keeps TradeQwest informed of its intentions to do so, the status of any such discussions or negotiations and (Cii) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and extent applicable, complying with Rule 14e-2 promulgated under the Exchange 1934 Act with respect regard to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal an Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15Except as expressly permitted by this Section 7.3, 1999during the Interim Period, the Company shall, and shall cause each of its Subsidiaries and its affiliates and their officers and directors to and, for the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination avoidance of this Agreementdoubt, the Company and its affiliates shall notbe responsible for any breach or noncompliance by any officers or directors, and shall instruct the Company direct its Representatives not to:
, (i) immediately cease any activities, solicitation, discussions or negotiations with any Persons with respect to any Competing Proposal or any Inquiry and promptly terminate all physical and electronic dataroom access granted to any such Person or its Representatives and, to the extent not previously requested, promptly request the return or destruction by such Person that has executed a confidentiality agreement at any time within twelve (12) months immediately preceding the date hereof in connection with any Inquiry, Competing Proposal or its consideration of any Competing Proposal and its Representatives of all non-public information concerning the Acquired Companies and (ii) not, directly or indirectly indirectly, (A) solicit, initiate, or encourage (including by way of furnishing nonpublic provide any non-public information or assistance)in response to, or take knowingly facilitate any other action to facilitate, Inquiry or the making of any inquiries or proposals from any person that constituteproposal which constitutes, or may reasonably be expected to lead to, an acquisitionany Competing Proposal, purchase(B) engage in, merger, consolidation, share exchange, recapitalization, business combination continue or other similar transaction involving otherwise participate in any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations regarding, or furnish to any other Person information in connection with any person in furtherance or for the purpose of such inquiries facilitating, a Competing Proposal or to obtain an Acquisition Proposal;
Inquiry or (iii) agree to or endorse any Acquisition Proposal;
(ivC) enter into any letter of intent, memorandum of understanding, merger agreement, arrangement acquisition agreement, agreement in principle or understanding other Contract (other than an Acceptable Confidentiality Agreement) with respect to a Competing Proposal or that would reasonably be expected to lead to a Competing Proposal or requiring it the Company to abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteriaContract, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality “Alternative Acquisition Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B”) or (CD) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK resolve, propose or agree to do any of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereofforegoing.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, From the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 date hereof until the termination of this Agreement, except as permitted hereby, the Company and its affiliates shall not, and nor shall instruct it permit any Company Subsidiary, or any officer, director, employee, agent or representative of the Company Representatives not or a Company Subsidiary (including, without limitation, any investment banker, attorney or accountant retained by the Company or a Company Subsidiary), to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, solicit or knowingly encourage (including by way of furnishing nonpublic information or assistance)any inquiries, or take any other action to facilitate, any inquiries offers or proposals from any person that constitute, or may would reasonably be expected to lead to, an acquisition, purchase, a proposal or offer for (x) any merger, consolidation, share exchange, recapitalization, business combination or similar transaction, (y) any sale, lease, exchange, mortgage, transfer or other similar disposition, in a single transaction involving any material portion or series of related transactions, of assets representing 20% or more of the assets or any securities ofof the Company and the Company Subsidiaries, any merger, consolidation or business combination withtaken as a whole, or any public announcement (z) sale of shares of capital stock representing, individually or in the aggregate, 20% or more of the voting power of the Company other than to the Company or a Company Subsidiary, including, without limitation, by way of a proposal, plan, tender offer or intention to do exchange offer by any person (other than the Company or a Company Subsidiary) for shares of capital stock representing 20% or more of the voting power of the Company (any of the foregoing byinquiries, offers or proposals being referred to in this Agreement as an "ACQUISITION PROPOSAL"), (ii) engage in negotiations or discussions -------------------- concerning, or provide to any person or entity any information or data relating to the Company or any Company Subsidiary for the purposes of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintainmaking, or continue discussions or negotiations with take any person in furtherance of such inquiries or other action to obtain an facilitate, any Acquisition Proposal;
, (iii) agree to to, approve or endorse recommend any Acquisition Proposal;
Proposal or (iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or take any other transaction contemplated action materially inconsistent with the obligations and commitments assumed by this Agreement, or
(v) authorize or permit the Company Representatives pursuant to take any such actionthis Section 5.8; provided, however, that prior that, subject to the approval of the Merger by the shareholders of the Company Company's compliance with this Section 5.8, nothing contained in this Agreement shall prohibit prevent the Company or its Board or of Directors from, prior to receipt of the Special Committee from Requisite Company Vote, (A) entering into a definitive agreement providing for the implementation of a Superior Proposal (as defined below) if the Company or the Board of Directors is simultaneously terminating this Agreement pursuant to Section 7.1(g), (B) furnishing non-public information to, and engaging in entering into customary confidentiality agreements with, or entering into discussions or negotiations with, any person or entity that makes in connection with an unsolicited written, bona fide proposal written Acquisition Proposal to acquire the Company and/or or its Subsidiaries pursuant to a mergerstockholders, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving if the sale Board of a material portion of the assets Directors of the Company, but only to by action of a majority of the extent that the Company entire Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be of Directors of the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith after consultation with the Company Financial Advisor or other nationally-recognized independent financial advisors that it has such Acquisition Proposal, if accepted, constitutes, or is reasonably likely to lead to, a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and Superior Proposal or (C) taking and disclosing to the Company's shareholders its stockholders a position with respect to such Acquisition Proposal contemplated by Rules 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange Act or making any other public disclosure that, in the opinion of the Company's counsel, is required by or advisable under applicable Law, provided, further, that except as otherwise permitted in this Section 5.8, the Company does not withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or approve or recommend, or propose to approve or recommend, an Acquisition Proposal. For purposes of this Agreement, "SUPERIOR PROPOSAL" means a bona fide written Acquisition Proposal on ----------------- terms which a majority of the members of the Board of Directors of the Company determine in their good faith judgment (after consultation with the Company Financial Advisor or other nationally-recognized independent financial advisors) and after taking into account all legal, financial, regulatory and other material aspects of the Acquisition Proposal, and the person making the proposal, to be more favorable from a financial point of view to the Company's stockholders than the Merger, and for which the Board of Directors of the Company determines in their good faith judgment (after such consultation) that financing, to the extent required, is then committed or reasonably likely to be available. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any tender offerof the foregoing, and will promptly inform the individuals or taking any other legally required action, or any action required by entities referred to in the rules or regulations first sentence of any self-regulating securities exchange, market or other body (including, without limitation, this Section 5.8(a) of the making obligations undertaken in this Section 5.8(a). For purposes of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, an Acquisition Proposal shall not be deemed to exist solely as a result of a person filing a report on Schedule 13G to report ownership of the Company Board's or Common Stock.
(b) The Company shall (i) promptly notify the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach Parent orally and in writing after receipt by the Company (or its advisors) of this Agreementany Acquisition Proposal or any inquiries indicating that any person is considering making or wishes to make, or which would reasonably be expected to lead to, an Acquisition Proposal, including the material terms and conditions thereof and, subject to the fiduciary duties of the Board of Directors of the Company under applicable law, the identity of the person making it, (ii) promptly notify the Parent orally and in writing after receipt of any request for non-public information relating to it or any of the Company Subsidiaries or for access to its or any of the Company Subsidiaries' properties, books or records by any person that, to the Company's knowledge, may be considering making, or has made, an Acquisition Proposal, (iii) receive from any person who may make or has made an Acquisition Proposal and that requests non-public information relating to the Company and/or any Company Subsidiary, an executed confidentiality letter in reasonably customary form and containing terms that are as stringent in all material respects as those contained in the Confidentiality Agreement prior to delivery of any such non-public information, and (iv) keep the Parent advised on a prompt basis of the status of any such Acquisition Proposal, indication or request (including any material changes to the terms and conditions of any Acquisition Proposal).
(c) The Company Board will promptly notify HK not withdraw or modify, or propose to withdraw or modify, in any manner adverse to Parent, its approval or recommendation of this Agreement or the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged Merger except in discussions or negotiations connection with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, and then only upon or after the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach termination of this provisionAgreement pursuant to Section 7.1(g).
Appears in 1 contract
Sources: Merger Agreement (Westower Corp)
No Solicitation. (a) The parties acknowledge SCI and S▇▇▇▇▇▇ Canada agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall notneither shall, and shall instruct the Company Representatives direct and cause their employees, agents and representatives (including any investment banker, attorney or accountant retained by SCI or S▇▇▇▇▇▇ Canada) not to:
(i) , directly or indirectly solicitindirectly, initiate, solicit, encourage or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, otherwise knowingly facilitate any inquiries or proposals from the making by any person that constitute, third party (other than S▇▇▇▇▇▇ and Bidco) of any proposal or may reasonably be expected offer with respect to lead to, an acquisition, a purchase, merger, consolidationreorganization, share exchange, recapitalizationconsolidation, amalgamation, arrangement, business combination combination, liquidation, dissolution, recapitalization or other similar transaction involving any material portion of the consolidated assets of SCI or S▇▇▇▇▇▇ Canada or any units or shares of any class of equity securities ofof SCI or S▇▇▇▇▇▇ Canada (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”). SCI and S▇▇▇▇▇▇ Canada further agree that neither they nor any of their officers and directors shall, and that they shall direct and cause their employees, agents and representatives (including any investment banker, attorney or accountant retained by SCI or S▇▇▇▇▇▇ Canada) not to, directly or indirectly, (i) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any merger, consolidation or business combination withPerson relating to an Acquisition Proposal, or otherwise knowingly facilitate any public announcement of a proposaleffort or attempt to make or implement an Acquisition Proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) execute or enter into, maintainor publicly propose to accept or enter into an agreement with respect to an Acquisition Proposal, including a letter of intent, agreement in principle, option agreement, merger agreement, acquisition agreement or continue discussions or negotiations with any person other agreement in furtherance of such inquiries or to obtain an Acquisition Proposal;.
(iiib) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreementNotwithstanding the provisions of Section 6.2(a), arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing contained in this Agreement shall prohibit the Company Board prevent SCI or the Special Committee Board, from (A) furnishing complying with Section 99 of the Securities Act (Ontario) and similar provisions of the Securities Laws of each of the other provinces and territories of Canada (it being understood that any such communication constituting a Change in Recommendation shall be made in compliance with Section 2.2 and the balance of this Section 6.2(b)) or from calling and holding a meeting of the Trust Unitholders if requisitioned by such Trust Unitholders; (B) providing information to, and in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board receives from the Person so requesting such information an executed confidentiality agreement on terms no less favourable in the aggregate to the disclosing party than those contained in the Confidentiality Agreement (including so-called “standstill” provisions); (C) effecting a Change in Recommendation in respect of an Acquisition Proposal; (D) engaging in any negotiations or discussions or negotiations with, with any person or entity that makes Person who has made an unsolicited written, bona fide proposal to acquire written Acquisition Proposal; or (E) concurrently with the Company and/or its Subsidiaries termination of this Agreement by SCI pursuant to a mergerSection 8.1(h) and following payment by SCI of the Termination Fee to S▇▇▇▇▇▇ and Bidco pursuant to Section 8.3(b)(iii), consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, entering into an agreement with respect to an Acquisition Proposal or any transaction involving the sale agreement referred to in clause (ii) of a material portion of the assets of the Company, but Section 6.2(a) with respect to an Acquisition Proposal if and only to the extent that that:
(i) in each such case referred to in clause (B), (C) or (D), (1) the Company Trust Unitholder Approval has not yet been obtained, (2) the Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, faith after consultation with independent outside legal counsel that failure to take the foregoing action would be inconsistent with its fiduciary duties under applicable Law, (who may be 3) the Company's regularly engaged outside legal counsel)Board, determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offersuch Acquisition Proposal constitutes, or taking any other legally required actionis reasonably likely to result in, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws)a Superior Proposal; and, provided further, that notwithstanding anything
(ii) in the case referred to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (AE) above, prior to SCI effecting a termination of this Agreement pursuant to Section 8.1(h), (B1) or (C) above the Trust Unitholder Approval shall not constitute a breach by have been obtained, (2) such party shall be in compliance with the Company provisions of this Agreement.
Section 6.2, (c3) The Company will promptly notify HK the Board shall have determined in good faith that such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the receipt adjustments which may be offered by Bidco during the five (5) Business Day period referred to in clause (5) below; (4) SCI shall have notified S▇▇▇▇▇▇ and Bidco in writing, at least five (5) Business Days in advance of any Formal Acquisition Proposaltermination that it is considering terminating this Agreement pursuant to Section 8.1(h), specifying the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal and delivering the documents and information required to be delivered pursuant to Section 6.2(c); and (5) during such five (5) Business Day period, SCI shall have negotiated, and shall have made its financial and legal advisors available to negotiate, with S▇▇▇▇▇▇ and Bidco should Bidco elect to make such adjustments in the terms and conditions of such proposal and the identity this Agreement. As used herein, “Superior Proposal” means a bona fide written Acquisition Proposal to purchase or otherwise acquire, directly or indirectly, 50% or more of the person making it. The Company also will promptly notify HK securities or all or substantially all of any change the assets of SCI or S▇▇▇▇▇▇ Canada and that the Board concludes in good faith, after consultation with financial advisors and outside legal counsel, and taking into account all legal, financial, regulatory and other aspects of the proposal, is (a) more favourable, from a financial point of view, to or modification of such Formal Acquisition Proposal the Trust Unitholders and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) abovefully financed or reasonably capable of being fully financed, the Company shall, reasonably likely to receive all Approvals on a timely basis and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as otherwise reasonably capable of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute being completed on a breach of this provisiontimely basis.
Appears in 1 contract
Sources: Purchase Agreement (Simmons Co)
No Solicitation. (a) The parties acknowledge After the date hereof and agree that prior to October 15the Effective Time, 1999, the Company agrees that the Company and its affiliates Subsidiaries shall not, and that it shall use its reasonable best efforts to cause the affiliates, officers, directors, employees, investment bankers, attorneys and other advisors or representatives of the Company Representatives shall or its Subsidiaries (“Representatives”), not to, directly or indirectly, (i) knowingly solicit, initiate or knowingly facilitate the making, submission of any inquiry, indication of interest, proposal or offer which would reasonably be permitted expected to take lead to a merger, acquisition, consolidation, tender offer, exchange offer or similar transaction involving, or any proposal or offer to purchase or acquire in any manner (A) assets representing 20% or more of the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination assets of this Agreement, the Company and its affiliates shall notSubsidiaries, and shall instruct taken as a whole, or (B) an equity interest in 20% or more of the voting securities of the Company Representatives not to:
(i) or of any of its Subsidiaries if such Subsidiaries own directly or indirectly solicit20% or more of the assets referred to in clause (A) (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”), initiateother than the transactions contemplated by this Agreement, (ii) enter into, participate, continue or otherwise engage in discussions or negotiations with, or encourage provide any non-public information to any Person (including other than Parent, Sub and their Representatives and other than to state that the Company is not permitted to have discussion except as permitted by way this Agreement) with respect to any inquiries, indication of furnishing nonpublic information interest, proposal or assistance)offer, regarding, or take any other action to facilitate, any inquiries or proposals from any person that constituteconstitutes, or may could reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities making of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
, or (iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated except as permitted by this Agreement, oragree to, accept, endorse, recommend, approve (or publicly propose or announce any intention or desire to agree to, accept, endorse, recommend or approve) any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to an Acquisition Proposal (other than a confidentiality agreement with a party to whom the Company is permitted to provide information in accordance with Section 7.3(b)).
(vb) authorize Notwithstanding the provisions of paragraph (a) above or permit the Company Representatives to take any such action; providedother provision of this Agreement, however, that prior to the approval Acceptance Time, (i) the Company may, in response to an unsolicited bona fide inquiry, offer or proposal which could lead to an Acquisition Proposal from any Person (a “Potential Acquiror”) which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor and outside legal counsel, could reasonably be expected to lead to a transaction more favorable to the holders of Common Stock than the Offer and the Merger (taking into account the likelihood of consummation, the person making the inquiry or proposal, the form, and amount of consideration offered, and any other factors deemed relevant by the Board of Directors of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board Company) (a “Superior Proposal”), furnish confidential or the Special Committee from (A) furnishing nonpublic information to, and engage in discussions and negotiate with, such Potential Acquiror, its representatives, advisors, sources of debt or equity financing, and persons expressing interest in purchasing any of the Company’s assets or businesses from such Potential Acquiror; provided, at least two business days prior to furnishing any such confidential or nonpublic information to, or engaging in discussions or negotiations with, any person or entity that makes an unsolicited writtensuch Person, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion gives Parent written notice of the assets identify of such Person and of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation ’s intention to furnish such nonpublic information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offerto, or taking any other legally required actionenter into discussions with, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreementsuch Person.
(c) The Company will shall reasonably promptly notify HK of the (and in no event later than 48 hours after receipt of any Formal Acquisition Proposal) notify Parent orally and in writing of any Acquisition Proposal, unsolicited inquiry or request for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Company's Board of Directors or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. The written notice shall include the identity of the Person making or submitting such Acquisition Proposal, inquiry or request for access, the material terms of the Acquisition Proposal or the request, and the Company shall keep Parent reasonably informed of any material changes with respect to such Acquisition Proposal or request. The Company shall reasonably promptly (and in no event later than 48 hours) notify Parent upon determination by the Board of Directors of the Company that an Acquisition Proposal is a Superior Proposal (except as set forth below). The Company shall keep Parent reasonably informed on a reasonably current basis of the status and material details of, and any material amendments or modifications to, any such inquiry, indication of interest, proposal, offer or request, and shall provide Parent, as promptly as practicable, a true, correct and complete copy of any written materials containing material non-public information provided by the Company or, to the knowledge of the Company, any Company Representative on behalf of the Company, in connection with any such inquiry, indication of interest, proposal, offer or request to the extent that any such written materials have not been previously provided to Parent, any of its Affiliates or any of their respective representatives (including lenders). The Company shall not exercise its right to terminate this Agreement pursuant to Section 9.1(f) hereof until after the second business day following Parent's receipt of written notice from the Company advising Parent that the Board of Directors of the Company has received a Superior Proposal, specifying the terms and conditions of such proposal the Superior Proposal and stating that the identity Board of Directors of the person making it. The Company also will promptly intends to exercise its right to terminate this Agreement pursuant to Section 9.1(f) (it being agreed and acknowledged that the Company shall not be required to notify HK Parent of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) changes with respect to any proposal that does not at such time constitute the terms of an Acquisition Proposal which the Company has advised Parent constitutes a Superior Proposal as defined in (bunless such changes cause the Board to determine that such Acquisition Proposal no longer constitutes a Superior Proposal) above, and any changes to the terms thereof shall not delay the Company’s right to terminate this Agreement and it being further agreed that such action by the Board of Directors of the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action public disclosure thereof shall not constitute a breach of Section 7.3(a)).
(d) Nothing contained in this provisionSection 7.3 shall prohibit the Company or its Board of Directors from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making such disclosure to the Company’s stockholders which, in the judgment of the Board of Directors of the Company after receiving advice of outside counsel, may be required under applicable law.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15Company, 1999, the Company and its affiliates and the Company Representatives their respective officers, directors, employees, representatives and agents shall be permitted immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination any acquisition or exchange of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly all or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing byequity interest in, the Company or any of its Subsidiaries subsidiaries or any business combination with the Company or any of its subsidiaries. Notwithstanding the immediately preceding sentence, the Company shall be permitted to engage in discussions regarding the DataCard Warrants and Options issued under the Stock Plans with the individual holders of such DataCard Warrants or Options, which discussions shall be solely (such transactions being referred i) in response to herein any exercise thereof in accordance with the terms of the DataCard Warrants or Options, as "Acquisition Proposals");
the case may be, and (ii) enter intofor the limited purpose of effecting the exercise thereof in accordance with the terms of the DataCard Warrants or Options, maintainas the case may be. The Company agrees that, prior to the Effective Time, it shall not, and shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to solicit, initiate, encourage or facilitate, or continue furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to any merger, liquidation, recapitalization, consolidation or other business combination involving the Company or any of its subsidiaries or acquisition of any capital stock or any material portion of the assets of the Company or its subsidiaries, or any combination of the foregoing (an "Acquisition Transaction"), or negotiate, ----------------------- explore or otherwise engage in discussions or negotiations with any person in furtherance of such inquiries (other than Merger Sub, Parent or their respective directors, officers, employees, agents and representatives) with respect to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction Transactions contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, provided that prior to the approval receipt of the Merger by the shareholders of Stockholder Approval, the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information may furnish information, pursuant to a customary confidentiality agreement, to, and engaging negotiate or otherwise engage in discussions or negotiations with, any person or entity that makes an unsolicited written, party who delivers a bona fide written proposal to acquire for an Acquisition Transaction for which all necessary financing is then in the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion judgment of the assets of Board readily obtainable, if the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, faith by a vote of a majority of the members of the full Board that failing to take such action would constitute a breach of the fiduciary duties of the Board (after consulting with independent consultation and receipt of advice from its outside legal counsel (which may be to such effect) and such a proposal is, in the written opinion of the Financial Advisor, more favorable to the Company's regularly engaged outside legal counsel), that it Stockholders from a financial point of view than the Transactions contemplated by this Agreement as the same has a fiduciary obligation been proposed to furnish be amended by Parent pursuant to Section 5.9(b) (such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteriabona fide written proposal, a "Superior Proposal"). ----------------- Nothing herein shall prevent or prohibit, provided, that prior or be construed to taking such actionprevent or prohibit, the Company notifies HK from complying with Rule 14e-2 of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by Act.
(b) From and after the rules or regulations execution of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's shall promptly advise Merger Sub in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations or proposals relating to an Acquisition Transaction, identify the Special Committee's exercise offeror and furnish to Merger Sub a copy of its rights under clause (A)any such proposal or inquiry, (B) if it is in writing, relating to an Acquisition Transaction. The Company shall promptly advise Parent of any material development relating to such proposal, including the results of any discussions or (C) above shall not constitute negotiations with respect thereto. Notwithstanding anything in this Agreement to the contrary, prior to the approval or recommendation of a breach Superior Proposal by the Board, the Company of this Agreement.
(c) The Company will promptly notify HK shall give Parent sufficient notice of the receipt material terms and conditions of any Formal such Acquisition ProposalTransaction, and negotiate in good faith with Parent for a period of not less than three business days (the "Negotiation Period") after it determines and notifies Parent that such proposal ------------------ or inquiry constitutes a Superior Proposal to make such adjustments in the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, this Agreement as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, would enable the Company shall, and shall cause its affiliates and to proceed with the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisiontransactions contemplated herein.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, From the Company and its affiliates and date hereof until the Company Representatives shall be permitted to take earlier of the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Closing or the termination of this AgreementAgreement in accordance with the terms hereof, the Company and its affiliates eInsure agrees:
(a) that it shall not, and shall instruct the Company Representatives direct and use its best efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it) not to:
(i) directly or indirectly solicit, initiate, solicit or encourage (including by way of furnishing nonpublic information encourage, directly or assistance), or take any other action to facilitateindirectly, any inquiries or proposals from the making or implementation of any person that constituteproposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any purchase of all or other similar transaction involving any material significant portion of the assets or any equity securities of, eInsure (any mergersuch proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, consolidation or business combination provide any confidential information or data to, or have any discussions with, or any public announcement of a proposal, planperson relating to an Acquisition Proposal, or intention otherwise facilitate any effort or attempt to do any of the foregoing by, the Company make or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain implement an Acquisition Proposal;
(iiib) agree that it will immediately cease and cause to be terminated any existing activities, discussions or endorse negotiations with any Acquisition Proposal;parties conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 5.2; and
(ivc) enter into that it will notify Trans-Century immediately of the identity of the potential acquiror and the terms of such person's or entity's proposal if any agreementsuch inquiries or proposals are received by, arrangement or understanding requiring it to abandonany such information is requested from, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreementsuch negotiations or discussions are sought to be initiated or continued with, or
(v) authorize or permit the Company Representatives to take any such actionit; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing contained in this Agreement Section 5.2 shall prohibit the Company Board or the Special Committee of Directors of eInsure from (Ai) furnishing information to, and engaging in to or entering into discussions or negotiations with, with any person or entity that makes an unsolicited written, bona fide written proposal to acquire the Company and/or its Subsidiaries such company pursuant to a merger, consolidation, share exchange, tender offer, recapitalizationpurchase of a substantial portion of the assets, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Companyif, but and only to the extent that that, (A) the Company Board or the Special Committee of Directors of such company determines in good faithfaith that such action is required for the Board of Directors to comply with its fiduciary duties to shareholders, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation B) prior to furnish furnishing such information to, or engage in such entering into discussions or negotiations with, such person or entity, eInsure provides written notice to Trans-Century to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines which eInsure determined in good faith that it has a was required to be executed in order for the Board of Directors to comply with its fiduciary obligation duties to do soshareholders), provided that HK is given two days' prior written notice eInsure keeps Trans-Century informed of its intentions to do so, the status of any such discussions or negotiations and (Cii) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and extent applicable, complying with Rule 14e-2 promulgated under the Exchange 1934 Act with respect regard to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal an Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior From the date of this Agreement until the Effective Time or the termination of this Agreement pursuant to October 15, 1999its terms, the Company and each of the Major Stockholders agrees that it, he or she will not and will not permit any of its affiliates and Subsidiaries, or any of its or their officers, directors, employees, representatives, agents, or Affiliates, including, without limitation, any investment banker, attorney or accountant retained by the Company Representatives shall be permitted to take the actions proscribed in clauses or any of its Subsidiaries (b)(icollectively, “Representatives”) through (v) below.
(b) From and after October 15to, 1999 until the termination of this Agreementdirectly or indirectly, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly initiate, solicit, initiate, encourage or encourage otherwise facilitate (including by way of furnishing nonpublic information or assistanceinformation), or take any other action to facilitate, any inquiries or proposals from the making of any person proposal or offer that constituteconstitutes, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination withAcquisition Proposal (as defined below), or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, into or maintain or continue discussions or negotiations negotiate with any person Person in furtherance of such inquiries or to obtain an Acquisition Proposal;
, or (iii) agree to to, approve, recommend, or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company any of its or their subsidiaries or Representatives to take any such action; providedaction and, however, that prior except to the approval extent prohibited by contracts existing at the date of this Agreement, the Company shall promptly notify Vital Images of any such inquiries and proposals received by the Company or any of its subsidiaries or Representatives, relating to any of such matters.
(b) For purposes of this Agreement, “Acquisition Proposal” means an inquiry, offer or proposal regarding any of the Merger by the shareholders of following including the Company nothing in or its subsidiaries (other than the transactions contemplated by this Agreement shall prohibit the Company Board or the Special Committee from Agreement): (Ai) furnishing information toany merger, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a mergerreorganization, consolidation, share exchange, tender offer, recapitalization, business combination combination, liquidation, dissolution, or other similar transactiontransaction involving, or any transaction involving the sale of a material sale, lease, exchange, mortgage, pledge, transfer or other disposition of, all or any significant portion of the assets or 20% or more of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such actionequity securities of, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates Subsidiaries, in a single transactions or series of related transactions which would reasonably be expected to interfere with the completion of the Merger; or (ii) any Company Representative is engaged in discussions tender offer or negotiations with any person exchange offer for 20% or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, more of the outstanding shares of capital stock of the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and filing of a registration statement under the taking of any such action shall not constitute a breach of this provision1933 Act in connection therewith.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and nor shall instruct it permit or authorize any of its Subsidiaries or any officer, director, employee, accountant, counsel, financial advisor, agent or other representative of the Company Representatives not or any of its Subsidiaries (collectively, the “Company Representatives”) to:
, on its or any of its Subsidiaries’ behalf, directly or indirectly, (i) directly or indirectly solicit, initiate, facilitate, respond to or encourage (encourage, including by way of furnishing nonpublic non-public information, any inquiries regarding or relating to, or the submission of, any Takeover Proposal (as defined below), (ii) participate in any discussions or negotiations, furnish to any Person any information or assistance)data relating to the Company or its Subsidiaries, provide access to any of the properties, books, records or employees of the Company or its Subsidiaries or take any other action action, in each such case regarding or to facilitate, facilitate the making of any inquiries or proposals from any person proposal that constituteconstitutes, or may reasonably be expected to lead to, an acquisitionany Takeover Proposal, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, arrangement merger agreement or understanding requiring it other similar agreement or commitment with respect to abandonany Takeover Proposal (an “Alternative Acquisition Agreement”) or agree to, terminate approve, endorse or fail resolve to consummate the Merger recommend or approve any other transaction contemplated Takeover Proposal, except in each case as otherwise specifically provided in Section 7.2(b), (iv) grant any waiver or release under any standstill or similar agreement by this Agreementany Third Party who has made a Takeover Proposal, or
(v) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of Delaware Law or otherwise cause such restrictions not to apply, or (vi) authorize or permit the direct any Company Representatives Representative to take any such action; provided, however, that prior nothing contained in this Section 7.2(a) or any other provision of this Agreement prohibits the Company or the Company Board from (A) taking and disclosing to the Company’s stockholders a position required by Rules 14d-9 and 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (B) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company Board, after receiving advice from its outside counsel, is required under applicable Law in order to comply with its fiduciary duties, or (C) notifying any Third Party solely of the existence of, and restrictions under, the provisions of this Section 7.2, provided that the Company may not, except as permitted by Section 7.2(b), withdraw or modify, or propose to withdraw or modify, its approval or recommendation of this Agreement or the transactions contemplated hereby, including the Merger, or approve or recommend, or propose to approve or recommend, any Takeover Proposal, or enter into any Alternative Acquisition Agreement. Upon execution of this Agreement, the Company shall, and it shall cause the Company Representatives and its Subsidiaries to, immediately terminate any existing activities, discussions, solicitations or negotiations with any Third Party conducted previously with respect to any Takeover Proposal. Notwithstanding any of the foregoing restrictions set forth in Section 7.1 or this Section 7.2(a), nothing in this Agreement prevents the Company or the Company Board from furnishing (or causing to be furnished), prior to, but not after, the time the vote is taken with respect to adoption of this Agreement and approval of the Merger by the shareholders of at the Company nothing in this Agreement shall prohibit the Company Board Meeting, information concerning its business, properties or the Special Committee from (A) furnishing assets, which information tois not of greater scope, and engaging in discussions area or negotiations withdetail than was provided to Parent, to any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries Third Party pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other confidentiality agreement with terms and conditions substantially similar transaction, or any transaction involving the sale of a material portion to those of the assets Confidentiality Agreement, and may negotiate and participate in discussions and negotiations with such Third Party who has made a bona fide, written Takeover Proposal, but only if: (w) such Takeover Proposal was made after the date of this Agreement (it being understood that such a Takeover Proposal made after the date of this Agreement by a Third Party who has made a Takeover Proposal prior to the date of this Agreement is considered a new Takeover Proposal made after the date of this Agreement); (x) none of the Company, but its Subsidiaries and the Company Representatives has solicited, initiated, or knowingly facilitated or encouraged any Takeover Proposal, or otherwise directly or indirectly violated this Section 7.2 (other than unintentional breaches that (1) have not directly or indirectly resulted in the making of such Takeover Proposal and (2) otherwise have had only to the extent an immaterial impact on Parent’s rights under this Section 7.2); (y) such Third Party has submitted a Takeover Proposal that the Company Board has determined (after consulting with outside legal counsel) either (i) constitutes a Superior Proposal (as defined below) or (ii) is more favorable to the Special Committee Company’s stockholders from a financial point of view than the Merger and is reasonably likely to lead to a Superior Proposal; and (z) the Company Board determines in good faith, after consulting with independent legal counsel (which may be receiving advice from its outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company's regularly engaged outside legal counsel)’s stockholders under applicable Law. The Company shall not release or permit the release of any Third Party from, or waive or permit the waiver of any provision of, any confidentiality, standstill or similar agreement to which the Company is a party or under which the Company has any rights. The Company shall promptly (and in any event within one (1) Business Day) notify Parent telephonically and in writing of the existence of any proposal, discussion, negotiation or inquiry received by the Company that it has is or could reasonably be expected to constitute or lead to a fiduciary obligation Takeover Proposal, and the Company shall promptly communicate in writing to furnish such information or engage in such discussions or negotiations with such person or entity (Parent the terms and conditions of any such proposal, discussion, negotiation or inquiry which it may receive, and provide a copy of any written proposal meeting and the identity of the Third Party making the same. The Company shall inform Parent within twenty-four (24) hours after any change to the material terms of any such criteria, Takeover Proposal. Within twenty-four (24) hours after any determination by the Company Board that a "Takeover Proposal constitutes a Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions shall deliver to Parent and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has Merger Sub a fiduciary obligation to do so, provided that HK is given two days' prior written notice advising them of its intentions to do sosuch determination, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, specifying the terms and conditions of such proposal Superior Proposal and the identity of the person Third Party making it. The Company also will promptly notify HK such Superior Proposal, and providing Parent and Merger Sub with a copy of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereofSuperior Proposal.
(db) To Neither the extent thatCompany Board nor any committee thereof shall (i) withdraw or modify, as of October 15or propose to withdraw or modify, 1999in a manner adverse to Parent or Merger Sub, the CompanyCompany Board Recommendation, (ii) approve or recommend, or propose to approve or recommend, any of its affiliates Takeover Proposal or (iii) enter into any Company Representative is engaged in discussions or negotiations with any person or entity Alternative Acquisition Agreement (other than HK) a confidentiality agreement expressly permitted by and in accordance with Section 7.2(a)). Notwithstanding the foregoing, prior to, but not after, the time the vote is taken with respect to any proposal that does not the adoption of this Agreement and approval of the Merger at the Company Meeting, the Company Board may make a change in the Company Board Recommendation in a manner adverse to Parent or Merger Sub (including, for such time constitute purpose, a withdrawal of such Company Board Recommendation) (a “Change in Company Recommendation”) and/or approve or recommend a Superior Proposal (and, in connection therewith, take such action as defined in (b) above, the Company shall, and shall cause its affiliates be necessary to exempt such Superior Proposal from any Takeover Statute and the Company Representatives toRights Agreement), cease any and all activitiesthe Company may enter into an Alternative Acquisition Agreement with respect to a Superior Proposal in connection with the termination of this Agreement, discussions or negotiations as of in each case if (A) the Company has received a Superior Proposal which is pending at the time the Company determines to take such date. Nothing in this Section 5.9(daction, (B) is intended to prevent, deter, or prohibit the Company Board or has determined in good faith, after receiving advice from its outside counsel, that such action is required to discharge the Special Committee Company Board’s fiduciary duties to the Company’s stockholders under applicable Law and (C) at least three (3) Business Days have passed following Parent’s receipt of an Adverse Recommendation Notice (as defined below), and Parent does not make an offer within such three (3) Business Day period that is at least as favorable to the Company’s stockholders as the Superior Proposal, as concluded by the Company Board in its good faith judgment, after consultation with its financial advisors and receiving advice from taking any action permitted by Section 5.9(b) above and its outside counsel (it being agreed that the taking of Company Board shall convene a meeting to consider any such action offer by Parent promptly following receipt of such offer and that the Company Board shall not constitute a breach withhold, withdraw or modify the Company Board Recommendation until the earlier of the receipt of Parent’s revised offer or three (3) Business Days after receipt by Parent of the Adverse Recommendation Notice).
(c) For purposes of this provision.Agreement:
Appears in 1 contract
No Solicitation. (a) The parties acknowledge Subject to Section 4.5(b), El Paso Parent and El Paso GP Holdco agree that prior from and after the Execution Date, they shall terminate all discussions and negotiations with others regarding a sale or other transaction involving (i) 5% or more of any class of equity securities in GulfTerra MLP or Enterprise MLP, as applicable, (ii) any of the membership interests in GulfTerra GP or Enterprise GP, as applicable, (iii) 5% or more of the assets, business (as measured by either net income or revenue) or securities of any of the GulfTerra Partnership Group Entities (other than those permitted under Section 5.1(b) of the Merger Agreement), or (iv) any other transaction similar to October 15the transactions contemplated by the Merger Agreement (each, 1999a "Possible Alternative"), and shall enforce any confidentiality or similar agreement relating to side discussions or negotiations, except for any offerings and sales of securities by GulfTerra MLP or Enterprise MLP, or any offerings of options, warrants, convertible securities, exchangeable securities, subscription rights, conversion rights, exchange rights or other contracts that are otherwise permitted by the Company terms of the Merger Agreement and that could require such person to issue, redeem, purchase or sell any of its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) equity interests with respect thereto. From and after October 15the Execution Date, 1999 until the termination of this Agreement, the Company El Paso Parent and its affiliates El Paso GP Holdco shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly indirectly, nor shall they authorize or permit any of their officers, directors or employees, or any investment banker, financial advisor, attorney, accountant or other representative (a "Representative") retained by them, (A) to solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), conduct discussions regarding or engage in negotiations regarding or take any other action to facilitate, any inquiries inquiries, or proposals from the making of any person that constitute, proposal (including any offer or proposal to its unitholders) which constitutes or may reasonably be expected to lead toto a Possible Alternative, (B) to enter into an acquisitionagreement (including any letter of intent or similar document) with any person, purchaseother than the Enterprise Parties, mergerproviding for or relating to a Possible Alternative or (C) to make or authorize any statement, consolidationrecommendation or solicitation in support of any Possible Alternative by any person, share exchangeother than by the Enterprise Parties.
(b) Notwithstanding the provisions of Section 4.4(a), recapitalizationEl Paso Parent, business combination El Paso GP Holdco and their Representatives shall be entitled, prior to the GulfTerra Unitholders' Meeting, to take any action otherwise prohibited by Section 4.4(a) in response to any third party proposal with respect to a Possible Alternative received by any or all of them if (i) the initial proposal from any third party was not received in violation of Section 4.4(a) and contains no financing condition (unless the GulfTerra GP Board of Directors determines in good faith upon advice of counsel that its fiduciary duties require it to consider an applicable proposal where the initial proposal contained a financing condition), (ii) the GulfTerra GP Board of Directors shall have determined, in its good faith judgment, that the proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other similar transaction involving any material portion aspects of the assets proposal, and that such proposal would, in its good faith judgment, if consummated, result in a transaction more favorable to the holders of GulfTerra Common Units (other than the GulfTerra Common Units and GulfTerra Series C Units to be purchased by Enterprise MLP pursuant to this Agreement) than the transactions contemplated hereby (a "Superior Transaction"), and (iii) the GulfTerra GP Board of Directors shall have determined, in its good faith judgment, after consultation with and based on the advice of its legal counsel, that the failure to take such action would be inconsistent with GulfTerra GP's or its Board of Directors' fiduciary duties to holders of GulfTerra Common Units under applicable Law; provided that neither El Paso Parent nor El Paso GP Holdco may enter into negotiations or discussions or supply any securities ofinformation in connection with a Possible Alternative unless it shall have first entered into a confidentiality agreement at least as restrictive as the Confidentiality Agreement, and provided further, that neither El Paso Parent nor El Paso GP Holdco shall take any action prohibited by Section 4.5(a)(B)-(D) (except as expressly required by the immediately preceding proviso) unless the Merger Agreement has first been (or is contemporaneously) terminated. El Paso Parent agrees that it will notify the Enterprise Parties promptly if any inquiry, contact or proposal is received by, any merger, consolidation or business combination withsuch information is requested from, or any public announcement of a proposalsuch discussions or negotiations are sought to be initiated or continued with, plan, or intention to do any of the foregoing by, the Company it or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter intoRepresentatives, maintainand thereafter shall keep the Enterprise Parties informed in writing, or continue discussions or negotiations with any person in furtherance on a current basis, regarding the status of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; providedinquiry, however, that prior to contact or proposal and the approval status of the Merger by the shareholders of the Company nothing any such negotiations or discussions. Nothing contained in this Agreement shall prohibit the Company prevent GulfTerra GP's Board or the Special Committee of Directors from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting complying with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to any tender offera Possible Alternative proposal. In addition, for the avoidance of doubt, if such Board of Directors reasonably believes that its fiduciary duties so require, El Paso Parent's Board of Directors or taking any other legally required action, or any action required by the rules or regulations El Paso GP Holdco's Board of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent thatDirectors, as of October 15applicable, 1999, the Company, may continue to consider any of its affiliates Possible Alternative or Superior Transaction notwithstanding any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) GulfTerra Reaffirmation with respect to any proposal that does not at such time constitute a Possible Alternative or Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionTransaction.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior Prior to October 15, 1999, the Company and its affiliates and earlier of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Closing or the termination of this Agreement, neither the Company and its affiliates shall not▇▇▇▇▇▇ Parties nor the NMD Parties shall, and neither the ▇▇▇▇▇▇ Parties nor the NMD Parties shall instruct the Company permit its controlled Affiliates or (using Reasonable Best Efforts) its or their respective Representatives not to:
(i) , directly or indirectly solicitindirectly, (a) discuss, encourage, negotiate, undertake, initiate, authorize, recommend, propose or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitateenter into, any inquiries transaction involving any sale, lease, license, exchange, mortgage, transfer or proposals from any person that constituteother disposition, in a single transaction or may reasonably be expected to lead toseries of related transactions, an acquisitionof all or a portion of the IDRH Subject Interests or the Marlin GP Interests, purchase, whether by merger, consolidation, share exchangebusiness combination, purchase or sale of equity interests or other securities, reorganization or recapitalization, business combination loan, issuance of equity interests or other similar transaction involving any material portion of the assets securities or any securities ofother transaction, except for the transactions contemplated by the Transaction Documents (a “▇▇▇▇▇▇ Acquisition Transaction”), (b) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of a ▇▇▇▇▇▇ Acquisition Transaction, (c) furnish or cause to be furnished, to any Person, any merger, consolidation information concerning the IDRH Subject Interests or business combination the Marlin GP Interests in connection with a ▇▇▇▇▇▇ Acquisition Transaction or (d) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any public announcement of a proposal, plan, effort or intention attempt by any other Person to do or seek any of the foregoing byforegoing. Upon the execution of this Agreement, the Company or each ▇▇▇▇▇▇ Party and each NMD Party shall, and each ▇▇▇▇▇▇ Party and each NMD Party shall cause its Affiliates and (using Reasonable Best Efforts) its and their respective Representatives to, immediately cease and cause to be terminated any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue existing discussions or negotiations with any person Persons (other than Azure) conducted heretofore with respect to any ▇▇▇▇▇▇ Acquisition Transaction. Notwithstanding the foregoing, this Section 8.9(a) shall in furtherance no way prohibit the board of such inquiries directors or officers of Marlin GP (in its capacity as the general partner of Marlin GP) from taking any action required by its duties to obtain an Acquisition Proposal;▇▇▇▇▇▇ and its partners under applicable Law or the ▇▇▇▇▇▇ Partnership Agreement.
(iiib) agree Prior to the earlier of the Closing or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by termination of this Agreement, or
Azure shall not, nor shall it permit its controlled Affiliates or (vusing Reasonable Best Efforts) authorize its or permit the Company their respective Representatives to take to, directly or indirectly, (a) discuss, encourage, negotiate, undertake, initiate, authorize, recommend, propose or enter into, any such action; providedtransaction involving any sale, howeverlease, that prior to the approval license, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of all or a portion of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board Legacy Assets or the Special Committee from (A) furnishing information toLegacy Business, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a whether by merger, consolidation, share exchangebusiness combination, tender offerpurchase or sale of equity interests or other securities, reorganization or recapitalization, business combination loan, issuance of equity interests or other similar securities or any other transaction, except for the transactions contemplated by the Transaction Documents (an “Azure Acquisition Transaction”), (b) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Azure Acquisition Transaction, (c) furnish or cause to be furnished, to any transaction involving Person, any information concerning the sale of a material portion Legacy Assets or the Legacy Business in connection with an Azure Acquisition Transaction or (d) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the assets foregoing. Upon the execution of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company Azure shall, and shall cause its affiliates Affiliates and the Company (using Reasonable Best Efforts) its and their respective Representatives to, immediately cease and cause to be terminated any and all activities, existing discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit with any Persons (other than the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above NMD Parties and the taking of ▇▇▇▇▇▇ Parties) conducted heretofore with respect to any such action shall not constitute a breach of this provisionAzure Acquisition Transaction.
Appears in 1 contract
Sources: Transaction Agreement (Marlin Midstream Partners, LP)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and nor shall instruct it permit any of its subsidiaries to, nor shall it authorize or permit any officer, director or employee of or any investment banker, attorney or other advisor, agent or representative of the Company Representatives not or any of its subsidiaries to:
, directly or indirectly, (i) directly or indirectly solicit, initiateinitiate or encourage the submission of any takeover proposal, (ii) enter into any agreement (other than confidentiality and standstill agreements in accordance with the immediately following proviso) with respect to any takeover proposal, or encourage (including by way of furnishing nonpublic iii) participate in any discussions or negotiations regarding, or furnish to any person any information or assistance)with respect to, or take any other action to facilitate, facilitate any inquiries or proposals from the making of any person proposal that constituteconstitutes, or may reasonably be expected to lead to, an acquisitionany takeover proposal; provided, purchasehowever, mergerin the case of this clause (iii), consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion that prior to the vote of stockholders of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any Company for approval of the foregoing byMerger (and not thereafter if the Merger is approved thereby) to the extent required by the fiduciary obligations of the Board of Directors of the Company, determined in good faith by a majority of the disinterested members thereof based on the advice of outside counsel, the Company may, in response to an unsolicited request therefor, furnish information to any person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) pursuant to a confidentiality and standstill agreement reasonably satisfactory to Parent. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer, director or employee of the Company or any of its Subsidiaries subsidiaries or any investment banker, attorney or other advisor, agent or representative of the Company, whether or not such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a material breach of this Agreement by the Company. For purposes of this Agreement, "takeover proposal" means (such transactions being referred to herein as "Acquisition Proposals");
i) any proposal, other than a proposal by Parent or any of its affiliates, for a merger or other business combination involving the Company, (ii) enter intoany proposal or offer, maintain, other than a proposal or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger offer by Parent or any other transaction contemplated by this Agreementof its affiliates, or
(v) authorize or permit to acquire from the Company Representatives to take or any such action; providedof its affiliates in any manner, howeverdirectly or indirectly, that prior to an equity interest in the approval of the Merger by the shareholders Company or any subsidiary, any voting securities of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of subsidiary or a material portion amount of the assets of the CompanyCompany and its subsidiaries, but only taken as a whole, or (iii) any proposal or offer, other than a proposal or offer by Parent or any of its affiliates, to acquire from the extent that stockholders of the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, exchange offer or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK otherwise more than 10% of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereofoutstanding Shares.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Tesoro Petroleum Corp /New/)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, Until the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until earlier of the termination of this AgreementAgreement or the Effective Time, the Company and its affiliates shall notagrees that neither it, and shall instruct the nor any Company Representatives not to:
Subsidiary nor any of their respective officers, directors, Employees, agents or representatives (including any investment banker) shall: (i) directly enter into any written or indirectly solicit, initiate, verbal agreement or encourage understanding with any Person (including other than Parent) regarding the sale (whether by way sale of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchasestock, merger, consolidation, share exchange, recapitalization, business combination sale of assets or other similar transaction involving disposition) of all or any part of the Company or any Company Subsidiary or any material portion of the their consolidated assets or any securities of, any merger, consolidation issued or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries unissued capital stock (such transactions being referred to herein as "Acquisition Proposals"an “Alternate Transaction”);
; (ii) enter into, maintain, into or continue or knowingly facilitate, initiate, solicit, encourage, induce or engage in any discussions or negotiations with any person in furtherance of such inquiries Person (other than Parent and its representatives) regarding an Alternate Transaction; or to obtain an Acquisition Proposal;
(iii) agree to except as otherwise required by applicable Legal Requirements, provide any nonpublic financial or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement other confidential or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit proprietary information regarding the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of and the Company nothing in Subsidiaries (including this Agreement shall prohibit the Company Board or the Special Committee from (Aand any materials containing Parent’s proposal) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity Person (other than HKParent and its representatives) with respect whom the Company or its Affiliates knows, or has substantial reason to believe, would have any proposal that does not at such time constitute a Superior Proposal as defined interest in (b) above, the participating in an Alternate Transaction. The Company shall, and shall cause its affiliates and the Company Representatives Subsidiaries to, cease and cause to be terminated any and all activitiesexisting discussions, discussions communications or negotiations as of such datewith any Person (other than Parent and Parent’s representatives) conducted heretofore with respect to any Alternate Transaction. Nothing in this Section 5.9(dWithin three (3) is intended to preventBusiness Days following the date hereof, deter, or prohibit the Company Board shall instruct any third party that expressed an interest in acquiring the Company at any time prior to the date hereof to return or destroy all Confidential Information (as defined in the Special Committee from taking Confidentiality Agreements) provided to such third party in connection therewith and shall terminate access to any action permitted by Section 5.9(b) above and the taking of data rooms previously provided to any such action shall not constitute a breach of this provisionthird parties in connection with an Alternate Transaction.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, For the Company and its affiliates and period from the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 date hereof until the date of termination of this AgreementAgreement in accordance with Section 9.1 hereof, neither the HPI Stockholders nor any Acquired Company and its affiliates shall notwill, and shall instruct the or will cause to permit any Acquired Company Representatives not or HEC to:
, directly or indirectly, (i) directly discuss, negotiate, undertake, authorize, recommend, propose or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintaineither as the proposed surviving, merged, acquiring or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations withacquired corporation, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to transaction involving a merger, consolidation, share exchangebusiness combination, tender offer, recapitalization, business combination purchase or disposition of all or any significant part of the assets (other than sales of inventory in the ordinary course) or capital stock or other similar transactionequity interest in any Acquired Company or Sioux City other than the transactions contemplated by this Agreement or a sale of Sioux City pursuant to the Buy and Sell Agreement dated March 1, 1992 (an "Acquisition Transaction"), (ii) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction, (iii) furnish or cause to be furnished, to any Person, any information concerning the business, operations, properties or assets of any Acquired Company in connection with an Acquisition Transaction, or (iv) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing. The HPI Stockholders will inform the Purchaser promptly following the receipt by any of them, any Acquired Company or HEC, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board their or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the any Acquired Company's regularly engaged outside legal counsel)representatives, that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market bona fide proposal or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary inquiry in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt respect of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereofTransaction.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999Except as permitted by this Section 5.3, the Company shall and shall cause each of its Subsidiaries and its affiliates and their respective officers and directors to, and cause its other Representatives to (i) immediately cease any direct or indirect solicitations, discussions or negotiations with any Persons with respect to a Takeover Proposal (or any inquiries, solicitations, discussions or negotiations that would reasonably be expected to result in a Takeover Proposal) that existed on or prior to the Company Representatives shall be permitted to take the actions proscribed in clauses date hereof and (b)(iii) through (v) below.
(b) From from and after October 15the date hereof until the Offer Acceptance Time or, 1999 until if earlier, the termination of this AgreementAgreement in accordance with Article VII, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly (A) initiate, solicit, initiate, knowingly or overtly encourage or facilitate (including by way providing information) the submission of furnishing nonpublic information any proposals, offers or assistance)inquiries regarding, or take the making of any other action proposal or offer that relates to facilitate, any inquiries or proposals from any person that constitute, or may could reasonably be expected to lead to, an acquisitiona Takeover Proposal, purchase(B) engage in, mergercontinue or otherwise participate in, consolidationknowingly encourage or facilitate any discussions or negotiations (including providing any data room access) regarding, share exchange, recapitalization, business combination or furnish to any other similar transaction involving Person any material portion of the assets or any securities of, any merger, consolidation or business combination non-public information in connection with, or any public announcement for the purpose of encouraging, a proposal, planTakeover Proposal, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(ivC) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, arrangement acquisition agreement or understanding requiring it other similar agreement providing for a Takeover Proposal. The Company shall promptly (and in any event within two (2) Business Days hereof) request in writing to abandoneach Person that has, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreementsince June 30, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that 2016 and prior to the approval date of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information executed a confidentiality agreement in connection with its consideration of a proposed Takeover Proposal to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting accordance with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent thatagreement, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.return
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15the date hereof, 1999 until the termination of this Agreement, the Company Qwest and its affiliates U S WEST shall not, nor shall they permit any of their respective Subsidiaries to, nor shall they authorize or permit any of their respective officers, directors or employees to, and shall instruct the Company Representatives use their commercially reasonable efforts to cause any investment banker, financial advisor, attorney, accountants or other representatives retained by them or any of their respective Subsidiaries not to:
, directly or indirectly through another person, (i) directly or indirectly solicit, initiate, initiate or encourage (including by way of furnishing nonpublic information or assistanceinformation), or knowingly take any other action designed to facilitate, any inquiries or proposals from any person that constituteAlternative Transaction (as hereinafter defined), or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue participate in any discussions or negotiations with regarding any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionAlternative Transaction; provided, however, that if, at any time prior to the approval of time the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board Qwest Stockholders' Approval or the Special Committee from (A) furnishing information toU S WEST Stockholders' Approval is obtained, and engaging in discussions the Board of Directors of Qwest or negotiations withU S WEST, any person or entity that makes an unsolicited writtenas the case may be, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish provide such information or engage to participate in such negotiations or discussions is reasonably likely to result in a Qwest Superior Proposal or negotiations with a U S WEST Superior Proposal (as such person terms are defined in Section 6.02 hereof), as the case may be, that was not initially solicited by it and that did not otherwise result from a breach of this Section 5.03, U S WEST or entity (any such proposal meeting such criteriaQwest, a "as applicable, may, subject to the Party receiving the Qwest Superior Proposal or U S WEST Superior Proposal"), providedas the case may be, that prior to taking such action, giving the Company notifies HK other Party written notice of its intentions and obtains an executed intention to do so, after obtaining a confidentiality agreement from the appropriate parties substantially similar to the Confidentiality AgreementAgreement dated July 8, 1999 between the Parties, (Bx) failing furnish information with respect to make Qwest or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if U S WEST, as the Company Board or the Special Committee, after consultation with independent legal counsel (who case may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do sobe, and (Cy) disclosing to engage in discussion and negotiations regarding such proposal. Each of Qwest and U S WEST shall promptly notify the Company's shareholders a position contemplated by Rules 14d-9 other Party orally and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations in writing of any self-regulating securities exchange, market request for information or other body (including, without limitationof any proposal in connection with an Alternative Transaction, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the material terms and conditions of such request or proposal and the identity of the person making itsuch request or proposal. The Company also Each of Qwest and U S WEST will promptly notify HK keep the other Party reasonably informed of any change to the status (including amendments or modification proposed amendments) of such Formal Acquisition Proposal request or proposal on a current basis. Each of Qwest and U S WEST shall immediately cease and terminate any existing solicitation, initiation, encouragement activity, discussion or negotiation with any persons conducted heretofore by them or their representatives with respect to the terms and conditions thereofforegoing.
(db) To Each of Qwest and U S WEST (i) agrees not to release any Third Party (as defined in Section 5.03(c)) from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreement to which it is a party related to, or which could affect, an Alternative Transaction and agrees that either Party shall be entitled to enforce the extent thatother Party's rights and remedies under and in connection with such agreements (provided Qwest shall have no such right with respect to the Global Merger Agreement) and (ii) acknowledges that the provisions of clause (i) are an important and integral part of this Agreement. Nothing contained in this Section 5.03 or in Section 6.02 shall prohibit either Party (i) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, or (ii) from making any disclosure to its stockholders if, in the good faith judgment of the Board of Directors of such Party, after receipt of advice from outside counsel, failure to disclose would result in a reasonable likelihood that such Board of Directors would breach its duties to such Party's stockholders under applicable law.
(c) For purposes of this Agreement, "Alternative Transaction" means a proposal or intended proposal, regarding any of (i) a transaction or series of transactions pursuant to which any person (or group of persons) other than a Party and its Subsidiaries (a "Third Party XE "Third Party" ") acquires or would acquire, directly or indirectly, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of more than twenty percent (20%) of the outstanding shares of Qwest or U S WEST, as the case may be, whether from Qwest of October 15U S WEST, 1999as the case may be, the Companyor pursuant to a tender offer or exchange offer or otherwise, (ii) any acquisition or proposed acquisition of, or business combination with U S WEST or any of its affiliates Significant Subsidiaries, or Qwest or any Company Representative of its Significant Subsidiaries, as applicable, by a merger or other business combination (including any so-called "merger-of-equals" and whether or not U S WEST or any of its Significant Subsidiaries or Qwest or any of its Significant Subsidiaries, as the case may be, is engaged in discussions the entity surviving any such merger or negotiations with business combination), or (iii) any person other transaction pursuant to which any Third Party acquires or entity would acquire, directly or indirectly, control of assets (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal including for this purpose the outstanding equity securities of Subsidiaries of U S WEST or Qwest, as defined in (b) above, the Company shallcase may be, and shall cause any entity surviving the merger or business combination including any of them) of U S WEST or any of its affiliates and Subsidiaries or Qwest or any of its Subsidiaries, as the Company Representatives tocase may be, cease any and for consideration equal to twenty percent (20%) or more of the fair market value of all activitiesof the outstanding shares of U S WEST Common Stock or twenty percent (20%) or more of the fair market value of all of the outstanding shares of Qwest Common Stock, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to preventthe case may be, deter, or prohibit on the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach date of this provisionAgreement.
Appears in 1 contract
Sources: Merger Agreement (Qwest Communications International Inc)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 the date of this Agreement until the earlier of the Closing or the termination of this AgreementAgreement pursuant to its terms, neither the Company and its affiliates shall notGroup nor the Members will, and shall instruct the Company Representatives not nor will they authorize or permit any of their respective officers, managers, Affiliates or employees or any investment banker, attorney or other consultant, advisor or representative retained by any of them to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of furnishing ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information or assistance)with respect to, or take any other action to facilitate, facilitate any inquiries or proposals from the making of any person proposal that constituteconstitutes, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
, (iii) agree to approve, endorse or endorse recommend any Acquisition Proposal;
Proposal or (iv) enter into any agreement, arrangement letter of intent or understanding requiring it to abandon, terminate or fail to consummate the Merger similar document or any other transaction contemplated by this Agreementcontract, or
(v) authorize agreement or permit commitment contemplating or otherwise relating to any Acquisition Proposal. The Company Group and the Company Representatives to take Members will immediately cease any such action; providedand all existing activities, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act Persons conducted heretofore with respect to any tender offerAcquisition Proposal. Without limiting the foregoing, or taking it is understood that any other legally required action, or any action required by violation of the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, restrictions set forth in the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach preceding two sentences by the Company Group, or by any officer, manager, affiliate or employee of the Company Group ,or any Member or any investment banker, attorney or other consultant, advisor or representative of the Company Group, or either Member shall be deemed to be a breach of this AgreementSection 4.2 by the Company.
(cb) The Company will promptly notify HK In addition to the obligations of the receipt Company and the Members set forth in Section 4.2(a), each of the Company and the Members as promptly as practicable, and in any Formal event within 24 hours of its receipt, shall advise Buyer orally and in writing of an Acquisition Proposal or any request for nonpublic information or other inquiry which the Company Group or such Member reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such proposal Acquisition Proposal, request or inquiry, and the identity of the person Person or group making itany such Acquisition Proposal, request or inquiry. The Company also Group and the Members will keep Buyer informed as promptly notify HK as practicable in all material respects of any change to material amendments or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking proposed amendments of any such action shall not constitute a breach of this provisionAcquisition Proposal, request or inquiry.
Appears in 1 contract
Sources: Interest Purchase Agreement (Shea Development Corp.)
No Solicitation. (a) The parties acknowledge During the period from the date of this Agreement and agree that prior to October 15, 1999, continuing until the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until earlier of the termination of this AgreementAgreement pursuant to its terms or the Closing, the Company and its affiliates shall not, and shall instruct cause its Subsidiaries and the Company Representatives Shareholders not to:
, and shall direct its employees, agents, officers, directors, representatives and advisors (collectively, “Representatives”) not to, directly or indirectly: (i) directly or indirectly solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action respond to facilitate, any inquiries or proposals from any person that constituteby, or may reasonably be expected to lead provide any information to, an acquisitionany Person (other than ION, purchasethe PIPE Investors, mergerthe Secondary Investors and their respective agents, consolidation, share exchange, recapitalization, business combination representatives and advisors) concerning (A) any merger or other sale of ownership interests of the Company (whether by recapitalization or a similar transaction involving or otherwise) pursuant to which any material portion Person(s) acquires twenty percent (20%) or more of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any voting power of the foregoing by, equity securities of the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(iiB) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of all or a material portion of the assets of the CompanyCompany (whether by recapitalization or a similar transaction or otherwise) (each, but only to the extent that the a “Company Board Business Combination”); (ii) enter into any agreement regarding, continue or the Special Committee determines otherwise participate in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such any discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offerregarding, or taking cooperate in any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may way that would otherwise reasonably be necessary or advisable under applicable securities laws)expected to lead to a Company Business Combination; and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (Ciii) above shall not constitute commence, continue or renew any due diligence investigation regarding a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itBusiness Combination. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) aboveIn addition, the Company shall, and shall cause its affiliates Subsidiaries to, and the Company shall cause their respective Representatives to, immediately cease any and all activities, existing discussions or negotiations as with any Person with respect to any Company Business Combination.
(b) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, ION shall not, and shall direct its Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company, the Company Shareholders and their respective Representatives) concerning any merger, purchase of ownership interests or assets of ION, recapitalization or other business combination transaction (each, an “ION Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to an ION Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding an ION Business Combination. ION shall, and shall cause its Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any ION Business Combination.
(c) Each Party shall promptly (and in no event later than 48 hours after becoming aware of such date. Nothing in this Section 5.9(dinquiry, proposal, offer or submission) is intended notify the other Parties if it or, to preventits Knowledge, deterany of its Representatives receives any inquiry, proposal, offer or prohibit submission with respect to a Company Business Combination or ION Business Combination, as applicable (including the Company Board identity of the Person making such inquiry or submitting such proposal, offer or submission), after the Special Committee from taking any action permitted by Section 5.9(b) above execution and the taking of any such action shall not constitute a breach delivery of this provisionAgreement. If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to a Company Business Combination or ION Business Combination, as applicable, such Party shall provide the other Parties with a copy of such inquiry, proposal, offer or submission.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that Subject to Section 7 hereof, prior to October 15the Termination Date, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates Sponsor shall not, and, to the extent applicable, shall cause its Affiliates not to, and shall instruct the Company use its reasonable best efforts to cause its and their respective Representatives not to:
, directly or indirectly, (i) directly or indirectly solicit, initiate, or encourage submit, facilitate (including by way means of furnishing nonpublic information or assistancedisclosing information), discuss or take any other action to facilitatenegotiate, directly or indirectly, any inquiries inquiry, proposal or proposals from offer (written or oral) with any person third-party with respect to a CGAC Acquisition Proposal, (ii) furnish or disclose any non-public information to any third-party in connection with or that constitute, or may could reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of to a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an CGAC Acquisition Proposal;
, (iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it with any third party regarding a CGAC Acquisition Proposal, or (iv) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to abandon, terminate do or fail seek to consummate the Merger or do any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing foregoing. Notwithstanding anything in this Agreement to the contrary, (i) Sponsor shall prohibit not be responsible for the Company Board actions of CGAC or the Special Committee from CGAC Board (A) furnishing information toor any committee thereof), and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transactionMerger Sub, or any transaction involving the sale officers, directors (in their capacity as such), employees and professional advisors of a material portion any of the assets foregoing (collectively, the “CGAC Affiliated Parties”), (ii) Sponsor makes no representations or warranties with respect to the actions of any of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do soCGAC Affiliated Parties, and (Ciii) disclosing to the Company's shareholders a position contemplated any breach by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise CGAC of its rights obligations under clause (A), (B) or (C) above Section 7.4 of the Business Combination Agreement shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute be considered a breach of this provisionSection 6(a) (it being understood that, for the avoidance of doubt, Sponsor or its Representatives (other than any such representative that is a CGAC Affiliated Party) shall remain responsible for any breach by Sponsor or its Representatives of this Section 6(a)).
Appears in 1 contract
Sources: Sponsor Support Agreement (Corner Growth Acquisition Corp.)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999During the Interim Period, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct cause the Company Company’s Subsidiaries not to, and shall direct their respective Representatives not to:
, directly or indirectly, other than as contemplated by this Agreement: (i) directly or indirectly solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action respond to facilitate, any inquiries or proposals from any person that constituteby, or may provide any information to, any Person (other than the SPAC and its Representatives) concerning any merger, consolidation, sale of ownership interests and/or material assets, recapitalization or similar transaction of, by or involving any Group Company, New PubCo or Merger Sub (each, a “Company Business Combination”); (ii) enter into any agreement regarding, or cooperate in any way that would otherwise reasonably be expected to lead toto a Company Business Combination; or (iii) commence, an acquisitioncontinue or renew any due diligence investigation regarding a Company Business Combination, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving in each case provided that the provisions of this Section 7.11(a) shall not in any material portion way restrict (x) the implementation of the assets ▇▇▇▇ Pre-Closing Steps; or (y) any securities of, any merger, consolidation actions expressly permitted to be taken by this Agreement or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itTransaction Documents. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates the Company’s Subsidiaries to, and the Company shall cause their respective Representatives to, immediately cease any and all activities, existing discussions or negotiations as with any Person (other than the SPAC and its Representatives) with respect to any Company Business Combination.
(b) During the Interim Period, the SPAC shall not, and shall cause the Sponsor not to, and shall direct its Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company Parties and their respective Representatives) concerning any merger, consolidation, purchase of ownership interests or assets, recapitalization or similar business combination transaction of, by or involving the SPAC (each, a “SPAC Business Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a SPAC Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a SPAC Business Combination. The SPAC shall, and shall cause its Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any SPAC Business Combination.
(c) Each Party shall promptly (and in no event later than twenty-four (24) hours after becoming aware of such dateinquiry, proposal, offer or submission) notify the other Parties if it or, to its knowledge, any of its or its Representatives receives any inquiry, proposal, offer or submission with respect to a Company Business Combination or SPAC Business Combination, as applicable, after the execution and delivery of this Agreement. Nothing in this Section 5.9(d) is intended If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to preventa Company Business Combination or SPAC Business Combination, deteras applicable, or prohibit such Party shall keep the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking other Parties reasonably informed of any material developments with respect to such action shall not constitute inquiry, proposal, offer or submission. Notwithstanding anything to the contrary, any Party may respond to any unsolicited proposal regarding a breach Company Business Combination or SPAC Business Combination by stating only that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide any information related to such Party or any of this provisionits Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning a Company Business Combination or SPAC Business Combination, as applicable.
Appears in 1 contract
No Solicitation. (a) The Each of the parties acknowledge and agree that prior to October 15hereto agrees that, 1999, during the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination term of this Agreement, without the Company and its affiliates consent of the other, it shall not, and shall instruct the Company Representatives not to:
(i) authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly indirectly, to solicit, initiate, knowingly encourage or encourage (including by way of furnishing nonpublic information or assistance)facilitate, or take any other action to facilitatefurnish or disclose non-public information in furtherance of, any inquiries or proposals from the making of any person that constituteproposal with respect to any merger, consolidation or other business combination involving such party, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination any acquisition of any capital stock or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or (except for acquisitions of assets in the ordinary course of business combination withconsistent with past practice and except for consummation of the GM Transactions) of such party, or any public announcement of a proposal, plan, or intention to do any combination of the foregoing by(in each case, the Company or any of its Subsidiaries (such transactions being referred to herein as a "Acquisition ProposalsCompeting Transaction");
(ii) enter into, maintain, or continue negotiate, explore or otherwise engage in discussions or negotiations with any person in furtherance of such inquiries (other than the other party hereto or its respective directors, officers, employees, agents and representatives or, with respect to obtain an Acquisition Proposal;
(iiiHughes, its affiliates) agree with respect to or endorse any Acquisition Proposal;
(iv) Competing Transac▇▇▇▇ ▇r enter into any agreement, arrangement or understanding therefor requiring it them to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionMerger; provided, however, that prior Hughes' obligations under this Section 5.1(k) shall only appl▇ ▇▇▇▇ respect to a Competing Transaction that includes the approval Defense Business or the consummation of which would otherwise result in the termination or material breach of any of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information toTransaction Agreements, and engaging provided further, that notwithstanding any other provision hereof, each party may (i) engage in discussions or negotiations withwith a third party who (without any solicitation, any person initiation, knowing encouragement, discussion or entity that makes an unsolicited writtennegotiation, bona fide proposal to acquire the Company and/or directly or indirectly, by or with such party or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transactionsubsidiaries, or any transaction involving of its or its subsidiaries' directors, officers, employees, agents or representatives after the sale of a material portion of the date hereof) seeks to initiate such discussion or negotiations and may furnish such third party information concerning such party and its business, properties and assets of the Companyif, but and only to the extent that, in each case (A) (x) the third party has first proposed a Competing Transaction that is superior to the transactions contemplated by this Agreement and has demonstrated that the Company consideration necessary for the Competing Transaction is reasonably likely to be available (all as determined in good faith in each case by such party's Board or the Special Committee determines of Directors after consultation with its financial advisors) and (y) such party's Board of Directors has concluded in good faith, after consulting with independent legal counsel (which may be on the Company's regularly engaged basis of oral or written advice of outside legal counsel), that it has such action is necessary for the Board of Directors to act in a manner consistent with its fiduciary obligation duties under Applicable Law and (B) prior to furnishing such information to or entering into discussions or negotiations with such person, such party shall have (x) provided prompt notice to the other party of its intent to furnish such information to or engage in such enter into discussions or negotiations with such person or entity and a description of the financial and other terms of the proposed Competing Transaction (any such proposal meeting such criteria, a "Superior Proposal"as well as all material revisions or modifications thereof), providedtogether with the evidence by which the third party which proposed such Competing Transaction demonstrated the likely availability of the consideration therefor, that prior to taking and (y) received from such action, the Company notifies HK of its intentions and obtains person or entity an executed confidentiality agreement from in reasonably customary form on terms not in the appropriate parties substantially similar aggregate materially more favorable to such person or entity than the terms contained in the Confidentiality Agreement, (Bii) failing with respect to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special CommitteeRaytheon, after consultation comply with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect regard to any a tender or exchange offer, or taking any other legally required actionand/or (iii) provided such party shall have terminated this Agreement pursuant to Section 7.1(i) hereof, or any action required by the rules or regulations of any self-regulating securities exchangeaccept a Competing Transaction from a third party. Each party hereto will immediately cease all existing activities, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms discussions and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) parties conducted heretofore with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, of the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionforegoing.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge From the date hereof until (i) the earlier of (A) 11:59 p.m., New York, New York time, on the date that is three (3) months after the date of this Letter and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(iB) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreementthe Investment Agreement in accordance with Section 5.01 of the Investment Agreement prior to the Closing, or (ii) such other date as may be mutually agreed to in writing by the Company and its affiliates Parties (such period being referred to as the “Non-Solicitation Period”), each of the Parties shall not, and shall instruct the Company Representatives not to:
direct its respective officers, directors, employees, controlled Affiliates, investment bankers, attorneys, accountants, and other advisors (icollectively, “Representatives”) to not, directly or indirectly indirectly, solicit, initiate, initiate or knowingly encourage (including by way of furnishing nonpublic non-public information or assistance)access to the business, properties, assets, books or records of the Purchaser or Parent or any of their respective Subsidiaries, in the case of the Purchaser or Parent, or furnishing non-public information or access to the business, properties, assets, books or records of the Company or any of its Subsidiaries, in the case of the Company or PAR) or take any other action to knowingly facilitate, any inquiries with respect to any Alternative Transaction Proposal (as defined below) or proposals from the making of any person proposal or offer that constituteconstitutes, or may would be reasonably be expected to lead to, an acquisitionAlternative Transaction Proposal, purchaseor enter into, mergermaintain or continue discussions or negotiate with any Person in furtherance of any Alternative Transaction Proposal, consolidationor enter into any contract or agreement with respect to any Alternative Transaction Proposal (except a Confidentiality Agreement); provided, share exchangehowever, recapitalizationthat any such Party may contact any Person who delivers any such inquiry, business combination proposal or other similar transaction involving any material portion offer to (x) notify such Person of the assets restrictions contemplated by this Letter and/or (y) confirm the terms and conditions thereof in order to determine whether such inquiry, proposal or offer constitutes, or would be reasonably expected to lead to, an Alternative Transaction Proposal. In furtherance of and without limiting the foregoing, each of the Parties shall, and shall direct such Party’s Representatives to (i) immediately cease and cause to be terminated any existing grant of access to any Person (other than the other Parties and their Representatives) with respect to any Alternative Transaction Proposal of any non-public information concerning the Purchaser or Parent or any securities ofof their respective Subsidiaries, any merger, consolidation in the case of the Purchaser or business combination withParent, or any non-public announcement of a proposal, plan, or intention to do any of the foregoing by, information concerning the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
Subsidiaries, in the case of the Company or PAR, and (ii) enter into, maintain, or continue immediately cease and cause to be terminated any existing discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity Person (other than HKthe other Parties and their Representatives) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in Alternative Transaction Proposal.
(b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing As used in this Section 5.9(dLetter:
(i) is intended the term “Confidentiality Agreement” means, with respect to prevent, deterany of the Purchaser and Parent, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute Company, as applicable, a breach of this provision.customary confidentiality agreement; and
Appears in 1 contract
Sources: Stage 2 Letter Agreement (Global Eagle Entertainment Inc.)
No Solicitation. (a) The parties acknowledge and agree that prior Prior to October 15, 1999, the Company and its affiliates and earlier of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Closing or the termination of this Agreement, neither the Company and its affiliates shall not▇▇▇▇▇▇ Parties nor the NMD Parties shall, and neither the ▇▇▇▇▇▇ Parties nor the NMD Parties shall instruct the Company permit its controlled Affiliates or (using Reasonable Best Efforts) its or their respective Representatives not to:
(i) , directly or indirectly solicitindirectly, (a) discuss, encourage, negotiate, undertake, initiate, authorize, recommend, propose or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitateenter into, any inquiries transaction involving any sale, lease, license, exchange, mortgage, transfer or proposals from any person that constituteother disposition, in a single transaction or may reasonably be expected to lead toseries of related transactions, an acquisitionof all or a portion of the IDRH Subject Interests or the Marlin GP Interests, purchase, whether by merger, consolidation, share exchangebusiness combination, purchase or sale of equity interests or other securities, reorganization or recapitalization, business combination loan, issuance of equity interests or other similar transaction involving any material portion of the assets securities or any securities ofother transaction, except for the transactions contemplated by the Transaction Documents (a “▇▇▇▇▇▇ Acquisition Transaction”), (b) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of a ▇▇▇▇▇▇ Acquisition Transaction, (c) furnish or cause to be furnished, to any Person, any merger, consolidation information concerning the IDRH Subject Interests or business combination the Marlin GP Interests in connection with a ▇▇▇▇▇▇ Acquisition Transaction or (d) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any public announcement of a proposal, plan, effort or intention attempt by any other Person to do or seek any of the foregoing byforegoing. Upon the execution of this Agreement, the Company or each ▇▇▇▇▇▇ Party and each NMD Party shall, and each ▇▇▇▇▇▇ Party and each NMD Party shall cause its Affiliates and (using Reasonable Best Efforts) its and their respective Representatives to, immediately cease and cause to be terminated any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue existing discussions or negotiations with any person Persons (other than Azure) conducted heretofore with respect to any ▇▇▇▇▇▇ Acquisition Transaction. Notwithstanding the foregoing, this Section 8.9(a) shall in furtherance no way prohibit the board of such inquiries directors or to obtain an Acquisition Proposal;officers of Marlin GP (in its capacity as the general partner of Marlin GP)
(iiib) agree Prior to the earlier of the Closing or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by termination of this Agreement, or
Azure shall not, nor shall it permit its controlled Affiliates or (vusing Reasonable Best Efforts) authorize its or permit the Company their respective Representatives to take to, directly or indirectly, (a) discuss, encourage, negotiate, undertake, initiate, authorize, recommend, propose or enter into, any such action; providedtransaction involving any sale, howeverlease, that prior to the approval license, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of all or a portion of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board Legacy Assets or the Special Committee from (A) furnishing information toLegacy Business, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a whether by merger, consolidation, share exchangebusiness combination, tender offerpurchase or sale of equity interests or other securities, reorganization or recapitalization, business combination loan, issuance of equity interests or other similar securities or any other transaction, or any transaction involving except for the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position transactions contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body Transaction Documents (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities lawsan “Azure Acquisition Transaction”); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision.,
Appears in 1 contract
Sources: Transaction Agreement
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, From the Company and its affiliates and date of this Agreement until the Company Representatives shall be permitted to take earlier of the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until Effective Time or the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives Subsidiaries shall not (and the Company will not permit any of its or any of its Company Subsidiaries' officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to:
), directly or indirectly, (i) directly or indirectly solicit, initiateencourage, engage in discussions or encourage negotiate with any Person (including whether such discussions or negotiations are initiated by way of furnishing nonpublic information the Company or assistance), otherwise) or take any other action intended or designed to facilitatefacilitate any inquiry or effort of any Person (other than Parent) relating to any possible acquisition of the Company (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any inquiries material portion of its capital stock or proposals assets (with any such efforts by any such Person, including a firm proposal to make such an acquisition, to be referred to as an "Alternative Acquisition"), (ii) provide information with ----------------------- respect to the Company to any Person, other than Parent, relating to a possible Alternative Acquisition by any Person, other than Parent, (iii) enter into an agreement with any Person, other than Parent, providing for a possible Alternative Acquisition, or (iv) make or authorize any statement, recommendation or solicitation in support of any possible Alternative Acquisition by any Person, other than by Parent. Notwithstanding the foregoing, prior to the acceptance for payment of Company Common Stock pursuant to, and subject to the conditions of, the Offer, the Company Board (or any committee thereof) may, to the extent required by the fiduciary obligations of the Company Board under Delaware law, as determined in good faith by the Company Board (or any committee thereof), in response to a proposal for an Alternative Acquisition ("Alternative ----------- Acquisition Proposal") that the Company Board (or any committee thereof) -------------------- determines, in good faith after consultation with independent counsel and an independent financial advisor, is or is reasonably likely to result in a Superior Company Proposal (as defined in Section 6.02(e)), that was not ---------------- solicited by the Company and that did not otherwise result from a breach of this Section 6.02(a) and subject to providing prior written notice of its decision to --------------- take such action to Parent, (x) furnish information with respect to the Company to the Person making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement with terms not materially more favorable to the Person making the Alternative Acquisition Proposal than those applicable to Parent under the Confidentiality Agreement and (y) participate in discussions and negotiations with such Person and its representatives to the extent required by the fiduciary duties of the Company Board regarding such Alternative Acquisition Proposal. The Company shall, and shall cause its representatives to, cease immediately all discussions and negotiations that may have occurred prior to the date of this Agreement regarding any person proposal that constituteconstitutes, or may reasonably be expected to lead to, an acquisitionAlternative Acquisition Proposal. For purposes of this Section 6.02 and ------------- Section 9.02(b)(ii), purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving the term "Person" shall include any material portion "group" as defined in ------------------- Section 13(a)(3) of the assets or Exchange Act. Without limiting the foregoing, it is ---------------- understood that any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any violation of the foregoing byrestrictions set forth in this Section 6.02 ------------ by any director, officer or employee of the Company or any of its Subsidiaries subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section ------- 6.02 by the Company. ----
(b) Neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board or any such transactions being referred to herein as "Acquisition Proposals");
committee of this Agreement, the Offer or the Merger, (ii) enter into, maintain, approve or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize cause or permit the Company Representatives to enter into any letter of intent, agreement in principle, definitive agreement or similar agreement constituting or relating to, or which is intended to or is reasonably likely to lead to any Alternative Acquisition Proposal, (iii) approve or recommend, or propose to approve or recommend, any Alternative Acquisition Proposal or (iv) agree or resolve to take any such action; providedactions set forth in clauses (i), however(ii) or (iii) of this sentence. Notwithstanding the foregoing, that if, ----------- ---- ----- during the period prior to the approval of the Merger by the shareholders acceptance for payment of the Company nothing in this Agreement shall prohibit Common Stock pursuant to the Offer, the Company Board or the Special Committee from (A) furnishing information to, receives a Superior Company Proposal and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines determines, in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, faith after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation is necessary to do so, provided that HK is given two days' prior written notice of so in order to comply with its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated fiduciary obligations under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this AgreementDelaware law, the Company Board's or the Special Committee's exercise Board may, during such period, in response to a Superior Company Proposal that was unsolicited and did not otherwise result from a breach of its rights under clause (ASection 6.02(a), (B) withdraw or (C) above shall not constitute a breach by modify its --------------- approval or recommendation of the Offer, the Merger and this Agreement and, in connection therewith, approve or recommend such Superior Company of this AgreementProposal.
(c) The Company will promptly notify HK of the receipt promptly, and in any event within 24 hours, shall advise Parent orally and in writing of any Formal Alternative Acquisition Proposal or any inquiry with respect to or that could lead to any Alternative Acquisition Proposal, the identity of the Person making any such Alternative Acquisition Proposal or inquiry and the material terms of any such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably informed of the status, including any change to the details, of any such Alternative Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Alternative Acquisition Proposal or sent or provided by the Company to any third party in connection with any Alternative Acquisition Proposal.
(d) Nothing contained in this Section 6.02 shall prohibit the Company from ------------ taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Company Board after consultation with independent counsel, failure so to disclose could be inconsistent with its obligations under Applicable Law. Notwithstanding the foregoing, except as set forth in Section 6.02(b), in no --------------- event shall the Company Board or any committee thereof withdraw or modify, or propose to withdraw or modify its position with respect to this Agreement, the Offer or the Merger or adopt, approve or recommend, or propose to adopt, approve or recommend any Alternative Acquisition Proposal.
(e) For purposes of this Agreement, "Superior Company Proposal" means any ------------------------- proposal made by a third party to acquire all or substantially all the equity securities or assets of the Company, or other transaction for the acquisition of all or substantially all the equity securities or assets of the Company through a tender or exchange offer, a merger, a 39 consolidation, a liquidation or dissolution, a recapitalization, a sale or a joint venture, (i) that is not subject to a financing contingency, (ii) that is on terms which the Company Board determines in its good faith judgment (after consultation with an independent financial adviser, with only customary qualifications, and independent legal counsel) to be superior for the holders of the Company Common Stock, from a financial point of view, to the Offer and the Merger, taking into account all the terms and conditions of such proposal and this Agreement (including any proposal made by Parent to amend the identity terms of this Agreement, the person making it. The Company also will promptly notify HK Offer and the Merger) taking into account the likelihood of any change to or modification consummation in light of all financial, regulatory, legal and other aspects of such Formal Acquisition Proposal and the terms and conditions thereof.
proposal (d) To the extent thatincluding, as of October 15, 1999, the Companywithout limitation, any of its affiliates antitrust or any Company Representative is engaged in discussions competition law approvals or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionnon-objections).
Appears in 1 contract
Sources: Merger Agreement (Ual Corp /De/)
No Solicitation. (a) The parties acknowledge During the period from the date of this Agreement and agree that prior continuing until the earlier of the termination of this Agreement pursuant to October 15, 1999its terms or the Closing, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates each Seller shall not, and shall instruct the Company Representatives shall cause its Subsidiaries not to:
, and each of them shall direct its employees, agents, officers, directors, representatives and advisors (collectively, “Representatives”) not to, directly or indirectly: (i) directly or indirectly solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action respond to facilitate, any inquiries or proposals from any person that constituteby, or may reasonably be expected to lead provide any information to, an acquisition, any Person (other than Acquiror and its Representatives) concerning any (1) stock purchase, merger, consolidation, share exchangereorganization, change in organizational form, spin-off, split-off, recapitalization, business combination sale of equity interests or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (other than the Transactions and, without limiting the terms and conditions set forth in Section 8.01, any acquisitions or dispositions by the Company or any of its Subsidiaries that the Acquiror has consented to in writing or that would not require the Acquiror’s written consent pursuant to Section 8.01), (2) any sale of all or a material portion of the assets of any Group Company (other than the Transactions), (3) any other transaction in respect of the Company or its Subsidiaries which results directly or indirectly, in a change of control of the Company or sale of any minority equity interest in the Company (other than the Transactions), or (4) any other transaction or series of transactions which has substantially similar economic or governance effects, in each such transactions being referred to herein as "Acquisition Proposals"case, in which transaction Acquiror does not participate (each, a “Company Business Combination”);
; (ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way (including by furnishing information) that would otherwise reasonably be expected to abandonlead to a Company Business Combination; (iii) commence, terminate continue or fail renew any due diligence investigation regarding a Company Business Combination; (iv) approve, endorse or recommend, or propose to consummate the Merger approve, endorse or recommend, any other transaction contemplated by this Agreement, or
Company Business Combination; or (v) authorize resolve or permit agree to do any of the foregoing. In addition, the Company Representatives to take any such action; providedand each Seller shall, however, that prior to the approval of the Merger by the shareholders of and the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from cause its Subsidiaries to, and each of them shall cause their respective Representatives to, (A) furnishing information to, immediately cease any and engaging in all existing discussions or negotiations with, and (B) request the prompt return of any person due diligence materials, and immediately terminate access to any data room, provided to, in each case of sub-clauses (A) and (B), any Person with respect to, or entity that makes an unsolicited writtenwhich may reasonably be expected to give rise to or result in, bona fide proposal to acquire any Company Business Combination.
(b) During the Company and/or its Subsidiaries period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to a its terms or the Closing, Acquiror shall not, and shall direct its Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company, the Sellers and their respective Representatives) concerning any (1) stock purchase, merger, consolidation, share exchangereorganization, tender offerchange in organizational form, spin-off, split-off, recapitalization, business combination sale of equity interests or other similar transaction, or any transaction involving Acquiror (other than the Transactions), (2) any sale or purchase of all or a material portion of the assets of Acquiror (other than the CompanyTransactions), but only (3) any other transaction in respect of Acquiror which results directly or indirectly, in a change of control of Acquiror or sale or purchase of any minority equity interest in Acquiror (other than the Transactions), (4) any Business Combination (as defined in the Acquiror Organizational Documents) other than the Transactions, or (5) any other transaction or series of transactions which has substantially similar economic effects, in each such case, other than transactions relating to the extent that the Acquiror Shareholder Redemption, PIPE Investment or Domestication, or in which transaction no Group Company Board participates (each, an “Acquiror Business Combination”); (ii) enter into any agreement, arrangement or the Special Committee determines understanding regarding, continue or otherwise participate in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such any discussions or negotiations with such person regarding, or entity cooperate in any way (including by furnishing information) that would otherwise reasonably be expected to lead to an Acquiror Business Combination; (iii) commence, continue or renew any such proposal meeting such criteriadue diligence investigation regarding an Acquiror Business Combination; (iv) approve, a "Superior Proposal")endorse or recommend, providedor propose to approve, that prior to taking such actionendorse or recommend, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, any Acquiror Business Combination; or (Bv) failing to make resolve or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation agree to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making itforegoing. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company Acquiror shall, and shall cause its affiliates and the Company Representatives to, (A) immediately cease any and all activities, existing discussions or negotiations as with, and (B) request the prompt return of any due diligence materials, and immediately terminate access to any data room, provided to, in each case of sub-clauses (A) and (B), any Person with respect to, or which may reasonably be expected to give rise to or result in, any Acquiror Business Combination.
(c) Each Party (other than the Seller Representative) shall promptly (and in no event later than twenty-four (24) hours after becoming aware of such date. Nothing in this Section 5.9(dinquiry, proposal, offer or submission) is intended notify the other Parties if it or, to preventits Knowledge, deterany of its Representatives receives any inquiry, proposal, offer or prohibit submission with respect to a Company Business Combination or Acquiror Business Combination, as applicable (including the Company Board identity of the Person making such inquiry or submitting such proposal, offer or submission), after the Special Committee from taking any action permitted by Section 5.9(b) above execution and the taking of any such action shall not constitute a breach delivery of this provisionAgreement. If either of such Parties or its Representatives receives an inquiry, proposal, offer or submission with respect to a Company Business Combination or Acquiror Business Combination, as applicable, such Party shall provide the other Parties with a copy of such inquiry, proposal, offer or submission.
Appears in 1 contract
Sources: Business Combination Agreement (Ascendant Digital Acquisition Corp.)
No Solicitation. Except as expressly permitted by this Section 6.9, the Company will, and will cause each other Company Group Member and its and their respective officers and directors to, and will cause its other Representatives to, (ai) The parties acknowledge promptly cease and agree terminate all solicitations, discussions and negotiations with any Person that prior to October 15, 1999, would be prohibited by this Section 6.9(c) (including any Person that received non-public information about the Company and its affiliates Subsidiaries or with whom the Company or its Representatives had discussions during the Go-Shop Period) and terminate all physical and electronic data-room access previously granted to any such Person or any of their Representatives in connection with the consideration of a Company Alternative Proposal (other than with respect to the Plan Investor and the Company Representatives shall be permitted other parties to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company Restructuring Support Agreement and its affiliates shall and their respective Affiliates and Representatives); and (ii) not, directly or indirectly, (A) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries, proposals or offers from any Person other than the Plan Investor and shall instruct the Company Representatives not its Affiliates and its and their respective Representatives, relating to:
(i) , or that could reasonably result in, any merger, acquisition, divestiture, sale of material assets or equity, business combination, recapitalization, joint venture, or other extraordinary transaction directly or indirectly solicitinvolving the equity, initiate, voting power or encourage (including by way of furnishing nonpublic information all or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any a material portion of the assets of the Company Group, taken as a whole or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, proposal that by its terms requires the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this Agreement (any such transaction or proposal, a “Company Alternative Transaction”); (B) other than an Acceptable Confidentiality Agreement, or
enter into any agreement (v) authorize including any acquisition agreement, restructuring support agreement, plan funding agreement, or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transactiondefinitive agreement, or any transaction involving letter of intent, memorandum of understanding, agreement in principle or similar agreement) relating to any Company Alternative Transaction other than with the sale of a material portion of the assets of the Company, but only to the extent that the Company Board Plan Investor or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK one of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and Affiliates; (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged participate in discussions or negotiations with any person other Person with respect to, or entity (that would reasonably be expected to result in, a Company Alternative Transaction with a party other than HKthe Plan Investor or one of its Affiliates; (D) with respect provide to any proposal that does not at such time constitute a Superior Proposal as defined in (b) aboveother Person, any material non-public information relating directly or indirectly to any Company Group Member, the purpose of which is to assist or facilitate a Company shallAlternative Proposal or a Company Alternative Transaction with any Person other than the Plan Investor or one of its Affiliates; or (E) publicly propose to do any of the actions prohibited by any of clauses (A) through (D), and shall cause other than in connection with a transaction with the Plan Investor or its affiliates and Affiliates. Without limiting the Company Representatives toforegoing, cease it is agreed that any and all activities, discussions or negotiations as violation of such date. Nothing the restrictions set forth in this Section 5.9(d6.9(c) is intended to preventby any Company Group Member, deter, and officer or prohibit director of the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of Company Group Member or any such action other Representative shall not constitute a breach of this provisionSection 6.9(c) by the Company. Notwithstanding anything to the contrary in Section 6.9, nothing herein shall prohibit the Company from releasing, waiving, modifying or not enforcing a standstill or confidentiality restriction with respect to any Person solely to the extent necessary to permit such Person to make a Company Alternative Proposal.
Appears in 1 contract
Sources: Plan Funding Agreement (Novelion Therapeutics Inc.)
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, From the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 date hereof until the termination of this AgreementAgreement in accordance with its terms, neither the Company nor any of its Subsidiaries or affiliates shall (and the Company shall use its reasonable best efforts to cause its and each of its Subsidiaries' officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, solicit, participate in, initiate or knowingly encourage discussions or negotiations with, provide any information to, or enter into any agreement with, any corporation, partnership, person or other entity or group (other than Parent or any of its affiliates shall not, and shall instruct the Company Representatives not to:
(ior representatives) directly or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, concerning any merger, consolidation business combination, tender offer, exchange offer, sale of all or business combination withsubstantially all of its business, assets, capital stock or debt securities or any public announcement of a proposal, plan, significant equity or intention to do any of the foregoing by, debt investment in the Company or any of its Subsidiaries similar transactions involving the Company (such transactions being referred to herein as an "Acquisition ProposalsProposal");
(ii) enter into. The Company further agrees that it will immediately cease any existing activities, maintain, or continue discussions or negotiations with any person in furtherance parties conducted heretofore with respect to any of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreementthe foregoing. Notwithstanding the foregoing, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, that prior to the approval time of acceptance of Shares for payment pursuant to the Merger by Offer, the shareholders Company may, directly or indirectly, provide access and furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to customary confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group if (x) such entity or group has submitted an unsolicited bona fide written proposal to the Board of Directors of the Company nothing in this Agreement shall prohibit relating to any such transaction, (y) such proposal is not subject to any financing contingency, and (z) the Board of Directors of the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting consultation with its independent legal counsel (which may be the Company's regularly engaged outside legal counsel)financial advisor, that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal is financially superior to the Offer (taking into account all terms and conditions of the proposal, including any break-up fees, expenses, conditions and financing) and the Merger. A proposal meeting such criteria, all of the criteria in the preceding sentence is referred to herein as a "Superior Proposal"), provided, that prior to taking such action, ." Nothing contained in this Section 5.5 shall prohibit the Company notifies HK or its Board of its intentions Directors from taking and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders stockholders a position contemplated with respect to a tender offer by a third party pursuant to Rules 14d-9 l4d-9 and 14e-2 l4e-2(a) promulgated under the Exchange Act Act. The Company will immediately notify Parent of any Superior Proposal, or if an inquiry is made, will keep Parent fully apprised of all developments with respect to any tender offerSuperior Proposal, or taking any other legally required action, or any action required by the rules or regulations will immediately provide to Parent copies of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach written materials received by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of in connection with any Formal Acquisition Superior Proposal, the terms and conditions of such proposal discussion, negotiation or inquiry and the identity of the person party making itany Superior Proposal or inquiry or engaging in such discussion or negotiation. The Company also will promptly notify HK -30- provide to Parent any non-public information concerning the Company provided to any other party which was not previously provided to Parent. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party. Notwithstanding anything to the contrary contained in this Agreement, only in connection with the valid termination of this Agreement pursuant to Section 7.1(c)(i) hereof, the Board of Directors of the Company may (i) withdraw, modify or change in a manner adverse to Parent or the Purchaser, or propose to withdraw, or propose to modify or change in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
or (diii) To the extent that, as of October 15, 1999, the Company, enter into any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HK) agreement with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, the Company shall, and shall cause its affiliates and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provisionAcquisition Proposal.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15Other than the Placement Agent Agreement, 1999, the Company and its affiliates Anchor and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15not authorize or permit any of their respective directors, 1999 until the termination of this Agreementofficers or employees or any investment banker, the Company and its affiliates shall notfinancial advisor, and shall instruct the Company Representatives not attorney, accountant or other representative retained by them to:
: (i) directly solicit or indirectly solicit, initiate, or encourage (including by way of furnishing nonpublic information or assistance), initiate or take any other action to facilitate, facilitate or cause any inquiries or proposals the making of any proposal from any person that constitutePerson (other than the Parties hereto) relating to any transaction involving the sale of the business or assets (other than in the ordinary course of business) of such entity, or may reasonably be expected to lead toany of the capital stock of such entity, an acquisition, purchase, or any merger, consolidation, share exchangebusiness combination, recapitalization, business combination sale or other similar transaction involving any exchange of all or a material portion amount of the assets or any securities of, any merger, consolidation similar transaction or business combination withseries of transactions involving such entity (a “Competing Transaction”), or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue participate in any discussions or negotiations with regarding any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such actionCompeting Transaction; provided, however, that prior to if, at any time, the approval board of the Merger by the shareholders directors of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or such entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee thereof determines in good faith, after consulting consultation with independent legal counsel (which may be the Company's regularly engaged outside legal counsel)such legal, financial and other advisors as it deems appropriate, that it has is necessary to do so in order to act in a manner consistent with its fiduciary obligation duties under its applicable state laws, such entity or any affiliates thereof may, prior to furnish such information its having obtained the necessary written consents or engage approvals to the Exchange and the Transactions, and in such discussions response to a Competing Transaction that was not solicited by it or negotiations with such person or entity (any such proposal meeting such criteria, that did not otherwise result from a "Superior Proposal"breach of this Section 4.3(a), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (Bx) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act furnish non-public information with respect to such entity to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body Person making a Competing Transaction pursuant to a confidentiality agreement and (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (By) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged participate in discussions or negotiations with any person or entity (other than HK) with respect to any proposal that does not at such time constitute regarding, and enter into and consummate a Superior Proposal as defined in Competing Transaction.
(b) above, The Parties shall keep each other reasonably informed of the Company shall, status and shall cause its affiliates details (including amendments and the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing in this Section 5.9(dproposed amendments) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall request or Competing Transaction. A Party may not constitute accept a breach Competing Transaction from any Person, nor may it terminate this Agreement, unless it has provided the other Parties at least four (4) calendar days notice of this provisionthe exact terms of the Competing Transaction, including a copy of the proposed agreement.
Appears in 1 contract
Sources: Securities Exchange Agreement (Anchor Funding Services, Inc.)
No Solicitation. (a) The Company shall, and shall use its reasonable best efforts to cause its Affiliates, officers, directors, employees, financial advisors, attorneys and other advisors, representatives and agents to, immediately cease any discussions or negotiations with third parties acknowledge and agree that prior with respect to October 15, 1999, the any Takeover Proposal (as defined below). The Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and nor shall instruct the Company Representatives not it authorize or permit any of its Affiliates to:
, nor shall it authorize or permit any officer, director or employee of or any financial advisor, attorney or other advisor, representative or agent of it or any of its Affiliates, to (i) directly or indirectly solicit, initiatefacilitate, initiate or encourage (including by way of furnishing nonpublic information the making or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities submission of, any mergerTakeover Proposal (including, consolidation or business combination withwithout limitation, or 48 53 the taking of any public announcement of a proposal, plan, or intention to do any action which would make Section 203 of the foregoing byDGCL inapplicable to a Takeover Proposal), the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter intointo any agreement, maintain, arrangement or continue discussions understanding with respect to any Takeover Proposal or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(viii) authorize initiate or participate in any way in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any information with respect to, or take any other action to facilitate or in furtherance of any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal, or (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities (other than to permit the Company Representatives to take any such actionreceive an unsolicitated Takeover Proposal that did not result from a breach of this Section 7.6); provided, however, PROVIDED that prior to the approval acceptance for payment of shares of Company Common Stock pursuant to the Offer, in response to an unsolicited Takeover Proposal that did not result from the breach of this Section 7.6 and following delivery to Parent of notice of the Merger by the shareholders of the Company nothing Takeover Proposal in this Agreement shall prohibit the Company Board or the Special Committee from (Acompliance with its obligations under Section 7.6(d) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such actionhereof, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged participate in discussions or negotiations with any person or entity furnish information (other than HKpursuant to a confidentiality/ standstill agreement with customary terms) with respect to any proposal third party which makes a bona fide written Takeover Proposal if (A) a majority of the Company's Board of Directors reasonably determines in good faith (after consultation with its financial advisor) that does not at taking such time constitute action would be reasonably likely to lead to the delivery to the Company of a Superior Proposal as defined and (B) a majority of the Company's Board of Directors determines in good faith (bafter consultation with outside legal counsel) abovethat it is necessary to take such actions in order to comply with its fiduciary duties under applicable law. Without limiting the foregoing, the Company shall, and shall cause its affiliates and agrees that any violation of the Company Representatives to, cease any and all activities, discussions or negotiations as of such date. Nothing restrictions set forth in this Section 5.9(d7.6(a) is intended to prevent, deterby any of its, or prohibit any of its Subsidiaries', officers, employees, Affiliates or directors or any advisor, representative, consultant or agent retained by the Company Board or any of its Subsidiaries or Affiliates in connection with the Special Committee from taking transactions contemplated hereby, whether or not such Person is purporting to act on behalf of the Company or any action permitted by Section 5.9(b) above and the taking of any such action its Subsidiaries, shall not constitute a breach of this provisionSection 7.6(a) by the Company.
Appears in 1 contract
No Solicitation. (a) The parties acknowledge and agree that prior to October 15, 1999, the Company and its affiliates and the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 the date hereof until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct their respective officers, directors, employees, agents or other representatives (in- cluding, without limitation, any investment banker, attorney or accountant retained by the Company Representatives or its subsidiaries) (the "Representatives") not to:,
(i) directly or indirectly solicit, initiateini- tiate, or encourage (including by way of furnishing nonpublic non- public information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion 20% or more of the assets or any securities of, any merger, merger consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries subsidiaries (such transactions transac- tions being referred to herein as "Acquisition ProposalsPropos- als");,
(ii) enter into, maintain, or continue discussions dis- cussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;,
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(viv) authorize or permit the Company Company's or any of its affiliates' Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit pro- hibit the Company Board or the Special Committee from from
(A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination offer or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which who may be the Company's regularly regu- larly engaged outside legal counsel), ) advises the Company Board in good faith that it has a fiduciary obligation failure to furnish such information informa- tion or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, would be a "Superior Proposal")breach of the fiduciary duties of the Company Board, provided, that prior to taking tak- ing such action, the Company Board notifies HK FSI of its intentions and obtains an executed confidentiality agreement agree- ment from the appropriate parties substantially similar to the Confidentiality Agreement, ,
(B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof 5.14 if the Company Board or the Special CommitteeCom- pany Board, after consultation with and based upon the advice of independent legal counsel (who may be the CompanyCom- pany's regularly engaged outside legal counsel), determines deter- mines in good faith that it has a such action is necessary for the Company board to comply with its fiduciary obligation duties to do sostockholders under applicable law, provided that HK is given two days' prior written notice of its intentions to do so, and and
(C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, and provided further, that notwithstanding anything to the contrary in this Agreement, the Company BoardCompany's or the Special Committee's Board of Direc- tors' exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(cb) The Company will promptly notify HK FSI of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK FSI of any change to or modification modi- fication of such Formal Acquisition Proposal and the terms and conditions condi- tions thereof.
(dc) To Subject to the extent that, as provisions of October 15, 1999subsection (b), the Company, any of Company shall immediately cease and cause its affiliates or and its and their Representatives to cease any Company Representative is engaged in and all existing activities, discussions or negotiations with any person or entity parties (other than HKFSI) conducted heretofore with respect to any proposal that does not at such time constitute a Superior Proposal as defined in (b) above, of the Company shallfore- going, and shall use its reasonable best efforts to cause its affiliates and any such parties in possession of confidential information about the Company Representatives to, cease any and all activities, discussions that was furnished by or negotiations as on behalf of such date. Nothing in this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board to return or destroy all such information in the Special Committee from taking any action permitted by Section 5.9(b) above and the taking possession of any such action shall not constitute a breach party (other than FSI) or in the possession of this provisionany Representative of any such party.
Appears in 1 contract
Sources: Merger Agreement (Fisher Scientific International Inc)
No Solicitation. (a) The parties acknowledge and agree Prior to the Effective Time, RBI agrees that prior to October 15neither it, 1999any of its Affiliates, nor any of the Company and its affiliates and respective directors, officers, employees, agents or representatives of the Company Representatives shall be permitted to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15foregoing will, 1999 until the termination of this Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) directly or indirectly indirectly, solicit, initiate, facilitate or encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate, disclosing non-public information) any inquiries or proposals from the making of any person that constitute, or may reasonably be expected proposal with respect to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any material portion of the assets or any securities of, any merger, consolidation or other business combination with, involving RBI or the acquisition of all or any public announcement significant assets or capital stock of RBI taken as a proposal, plan, or intention to do any of the foregoing by, the Company or any of its Subsidiaries whole (such transactions being referred to herein as an "Acquisition ProposalsTransaction");
(ii) enter intoor negotiate, maintain, explore or continue otherwise engage in discussions or negotiations with any person in furtherance of such inquiries or (other than Parent and its representatives) with respect to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) Transaction or enter into any agreement, arrangement or understanding requiring with respect to any such Acquisition Transaction or which would require it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, or
(v) authorize or permit the Company Representatives to take any such action; provided, however, . RBI agrees that prior to the approval as of the Merger by date hereof, it, its Affiliates, and the shareholders respective directors, officers, employees, agents and representatives of the Company nothing in this Agreement foregoing, shall prohibit the Company Board or the Special Committee from (A) furnishing information toimmediately cease and cause to be terminated any existing activities, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transaction, or any transaction involving the sale of a material portion of the assets of the Company, but only to the extent that the Company Board or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged in discussions or negotiations with any person or entity (other than HKParent and its representatives) conducted heretofore with respect to any Acquisition Transaction. RBI agrees to promptly advise Parent in writing of any inquiries or proposals (or desire to make a proposal) received by (or indicated to), any such information requested from, or any such negotiations or discussions sought to be initiated or continued with, any of its Affiliates, or any of the respective directors, officers, employees, agents or representatives of the foregoing, in each case from a person (other than Parent and its representatives) with respect to any proposal that does not at an Acquisition Transaction, and the terms thereof, including the identity of such time constitute a Superior Proposal as defined in (b) abovethird party, and to update on an ongoing basis or upon Parent's request, the Company shallstatus thereof, and shall cause its affiliates and the Company Representatives to, cease as well as any and all activities, discussions actions taken or negotiations as of such date. Nothing in other developments pursuant to this Section 5.9(d) is intended to prevent, deter, or prohibit the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of any such action shall not constitute a breach of this provision6.2.
Appears in 1 contract
Sources: Merger Agreement (Schein Henry Inc)
No Solicitation. Except as expressly permitted by this Section 6.9, the Company will, and will cause each other Company Group Member and its and their respective officers and directors to, and will cause its other Representatives to, (ai) The parties acknowledge promptly cease and agree terminate all solicitations, discussions and negotiations with any Person that prior to October 15, 1999, would be prohibited by this Section 6.9(c) (including any Person that received non-public information about the Company and its affiliates Subsidiaries or with whom the Company or its Representatives had discussions during the Go-Shop Period) and terminate all physical and electronic data-room access previously granted to any such Person or any of their Representatives in connection with the consideration of a Company Alternative Proposal (other than with respect to the Plan Investor and the Company Representatives shall be permitted other parties to take the actions proscribed in clauses (b)(i) through (v) below.
(b) From and after October 15, 1999 until the termination of this Agreement, the Company Restructuring Support Agreement and its affiliates shall and their respective Affiliates and Representatives); and (ii) not, directly or indirectly, (A) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries, proposals or offers from any Person other than the Plan Investor and shall instruct the Company Representatives not its Affiliates and its and their respective Representatives, relating to:
(i) , or that could reasonably result in, any merger, acquisition, divestiture, sale of material assets or equity, business combination, recapitalization, joint venture, or other extraordinary transaction directly or indirectly solicitinvolving the equity, initiate, voting power or encourage (including by way of furnishing nonpublic information all or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, an acquisition, purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving any a material portion of the assets of the Company Group, taken as a whole or any securities of, any merger, consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, proposal that by its terms requires the Company or any of its Subsidiaries (such transactions being referred to herein as "Acquisition Proposals");
(ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction transactions contemplated by this Agreement (any such transaction or proposal, a “Company Alternative Transaction”); (B) other than an Acceptable Confidentiality Agreement, or
enter into any agreement (v) authorize including any acquisition agreement, restructuring support agreement, plan funding agreement, or permit the Company Representatives to take any such action; provided, however, that prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or the Special Committee from (A) furnishing information to, and engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, tender offer, recapitalization, business combination or other similar transactiondefinitive agreement, or any transaction involving letter of intent, memorandum of understanding, agreement in principle or similar agreement) relating to any Company Alternative Transaction other than with the sale of a material portion of the assets of the Company, but only to the extent that the Company Board Plan Investor or the Special Committee determines in good faith, after consulting with independent legal counsel (which may be the Company's regularly engaged outside legal counsel), that it has a fiduciary obligation to furnish such information or engage in such discussions or negotiations with such person or entity (any such proposal meeting such criteria, a "Superior Proposal"), provided, that prior to taking such action, the Company notifies HK one of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.12 hereof if the Company Board or the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that it has a fiduciary obligation to do so, provided that HK is given two days' prior written notice of its intentions to do so, and Affiliates; (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or taking any other legally required action, or any action required by the rules or regulations of any self-regulating securities exchange, market or other body (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws); and, provided further, that notwithstanding anything to the contrary in this Agreement, the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a breach by the Company of this Agreement.
(c) The Company will promptly notify HK of the receipt of any Formal Acquisition Proposal, the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify HK of any change to or modification of such Formal Acquisition Proposal and the terms and conditions thereof.
(d) To the extent that, as of October 15, 1999, the Company, any of its affiliates or any Company Representative is engaged participate in discussions or negotiations with any person other Person with respect to, or entity (that would reasonably be expected to result in, a Company Alternative Transaction with a party other than HKthe Plan Investor or one of its Affiliates; (D) with respect provide to any proposal that does not at such time constitute a Superior Proposal as defined in (b) aboveother Person, any material non-public information relating directly or indirectly to any Company Group Member, the purpose of which is to assist or facilitate a Company shallAlternative Proposal or a Company Alternative Transaction with any Person other than the Plan Investor or one of its Affiliates; or (E) publicly propose to do any of the actions prohibited by any of clauses (A) through (D), and shall cause other than in connection with a transaction with the Plan Investor or its affiliates and Affiliates. Without limiting the Company Representatives toforegoing, cease it is agreed that any and all activities, discussions or negotiations as violation of such date. Nothing the restrictions set forth in this Section 5.9(d6.9(c) is intended to preventby any Company Group Member, deter, and officer or prohibit director of the Company Board or the Special Committee from taking any action permitted by Section 5.9(b) above and the taking of Company Group Member or any such action other Representative shall not constitute a breach of this provisionSection 6.9(c) by the Company. Notwithstanding anything to the contrary in Section 6.9, nothing herein shall prohibit the Company from releasing, waiving, modifying or not enforcing a standstill or confidentiality restriction with respect to any Person solely to the extent necessary to permit such Person to make a Company Alternative Proposal.
Appears in 1 contract