No Solicitation. (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent. (b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent. (c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures. (d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a). (e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 3 contracts
Sources: Merger Agreement (Winston Hotels Inc), Merger Agreement (Winston Hotels Inc), Merger Agreement (Inland American Real Estate Trust, Inc.)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement until the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall notagrees that it will not and will not permit any of its Subsidiaries, directly or indirectlyany of its or their officers, and shall cause directors, employees, representatives, agents, or Affiliates, including, without limitation, any investment banker, attorney or accountant retained by the other Acquired CompaniesCompany or any of its Subsidiaries (collectively, its Representatives and the Representatives of the other Acquired Companies not “Representatives”) to, directly or indirectly, (i) initiate, solicit, initiateencourage or otherwise facilitate (including by way of furnishing information or otherwise), encourage, induce or facilitate any inquiries regardingor the making of any proposal or offer that constitutes, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could may reasonably be expected to lead to an Acquisition ProposalProposal (as defined below), or (ii) furnish any nonpublic information regarding any of the Acquired Companies, enter into or provide any access to the books, records maintain or personnel of any of the Acquired Companies, to continue discussions or negotiate with any Person in connection with furtherance of such inquiries or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to obtain an Acquisition Proposal, or (iii) engage inagree to, continue or otherwise participate in any discussions or negotiations with any Person in respect ofapprove, recommend, or otherwise cooperate with respect to, endorse any Acquisition Proposal, (iv) approveor resolve, endorse agree or recommend publicly propose to take any Acquisition Proposal or (v) enter into such action and the Company shall promptly notify Acquiror of any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document such inquiries and proposals received by the Company or any Contract contemplating of its Subsidiaries or otherwise Representatives, relating to any Acquisition Transaction. Without limiting the foregoingof such matters, it is agreed provided, however, that at any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and time prior to the adoption of this Agreement by the Required Company Shareholder Requisite Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding Board (and the Acquired Companies toCompany Special Committee) may, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its (upon the recommendation of the Company Special Committee concludes Committee) determines, in good faith, after consultation with outside counsel and financial advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal, and which Acquisition Proposal did not result from a breach of this Section 5.3(a), (x) provide access or furnish information with respect to the Company’s Company and its Subsidiaries to the Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement and (y) engage in discussions or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent negotiations with the fiduciary obligations Person making such Acquisition Proposal (and its representatives) regarding such Acquisition Proposal; provided further, however, that, subject to the right of the Company Board to withhold information where such disclosure would violate or prejudice the Company’s shareholders under applicable Legal Requirements, (C) the Company Board rights of its or its Special Committee concludes in good faithSubsidiaries’ clients, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, jeopardize the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf attorney-client privilege of the Company and customary “standstill” provisions. As promptly as reasonably practicable following or its Subsidiaries or contravene any law or binding agreement entered into prior to the furnishing date of nonpublic information pursuant to this Section 6.3(a)Agreement, the Company shall promptly provide to Parent Acquiror any nonpublic non-public information concerning any of the Acquired Companies that is furnished provided to any third the Person making such Acquisition Proposal or its Representatives representatives which was not previously provided to ParentAcquiror. The Company shall also, within one Business Day, notify Acquiror of the receipt of any Acquisition Proposal and the material terms and conditions thereof. Further, the Company shall promptly keep Acquiror advised on a substantially current basis of any developments relating to any such Acquisition Proposal.
(b) From and after the execution For purposes of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any “Acquisition Proposal, any indication by any Person considering making ” means an Acquisition Proposal, any request for information relating to offer or proposal regarding any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person following (other than the Buyer Parties and their respective Affiliatestransactions contemplated by this Agreement) including the Company or its Subsidiaries: (i) any merger, reorganization, consolidation, share exchange, recapitalization, business combination, liquidation, dissolution, or other similar transaction involving, or, an acquisition in any manner of, all or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier significant portion of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XIassets or any significant equity interest of, the Company Board or any of its Special Committee may take one Subsidiaries, in a single transaction or more series of related transactions which would reasonably be expected to interfere with the completion of the actions described in the preceding clauses Merger; or (iii) – (iv) in response to a Superior Proposal if the Company Board any tender offer or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations exchange offer for any outstanding shares of capital stock of the Company Board to or the Company’s shareholders filing of a registration statement under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresSecurities Act in connection therewith.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 3 contracts
Sources: Merger Agreement (Digital Angel Corp), Merger Agreement (Applied Digital Solutions Inc), Merger Agreement (Applied Digital Solutions Inc)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, not directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives not authorize or knowingly permit any of the other Acquired Companies not to, Corporations or any Representative of any of the Acquired Corporations directly or indirectlyindirectly to, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is being understood and agreed that informing any violation Person as to the existence of the restrictions set forth this provision in this Section 6.3(a) by response to any Representative of any of the Acquired Companiesunsolicited Acquisition Proposal, whether proposal or inquiry shall not such Person is purporting to act on behalf of any of the Acquired Companies constitute or otherwise, shall be deemed to be a breach violation of this Section 6.3(a) by the Company. Notwithstanding the foregoing; provided, from the date hereof and however, that prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)4.3(a) shall, subject to Section 6.3(b), shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Companies Corporations to, entering into a confidentiality agreement with, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written an unsolicited Acquisition Proposal that the Company’s Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Offer that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A1) neither the Company nor any Representative of any of the Acquired Companies Corporations shall have breached or violated taken any action inconsistent with any of the provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal4.3, (B2) the board of directors of the Company Board or its Special Committee concludes in good faith, after consultation with having taken into account the Company’s or the Special Committee’s written advice of its outside legal counsel, that failure to take such action would be inconsistent with is required in order for the fiduciary obligations board of directors of the Company Board to comply with its fiduciary obligations to the Company’s shareholders under applicable Legal Requirementslaw, (C3) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) at least two business days prior to furnishing any such nonpublic information to to, entering into a confidentiality agreement with, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, entering into a confidentiality agreement with, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company substantially similar to the confidentiality provisions contained in that certain letter agreement dated May 25, 2007, as amended on June 19, 2007, between the Company and customary “standstill” provisions. As promptly as reasonably practicable following the Parent, and (4) prior to furnishing of any such information that is material nonpublic information pursuant to this Section 6.3(a)such Person, the Company shall provide furnishes such material nonpublic information to Parent any (to the extent such nonpublic information concerning has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action inconsistent with of any of the provisions set forth in the preceding sentence by any Representative of any of the Acquired Companies that Corporations, whether or not such Representative is furnished purporting to act on behalf of any third Person or its Representatives which was not previously provided of the Acquired Corporations, shall be deemed to Parentconstitute a breach of this Section 4.3 by the Company.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the The Company Parties shall promptly, promptly advise Parent orally (within 24 hours) and in any event writing (within forty-eight (4848 hours) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any inquiry or indication by any Person considering making of interest that could lead to an Acquisition Proposal, Proposal or any request for nonpublic information relating to any of the Acquired Companies Corporations (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making or submitting such Acquisition Proposal Proposal, inquiry, indication of interest or request, and (ivthe terms thereof) that is made or submitted by any Person during the Company’s intention to furnish information to, or enter into discussions or negotiations with, such PersonPre-Closing Period. The Company shall keep Parent reasonably informed on a prompt basis as in all material respects with respect to any material developments regarding the status of any such Acquisition Proposal, indicationinquiry, inquiry indication of interest or request. None of the Acquired Companies shall, after the date hereof, enter into request and any confidentiality agreement that would prohibit them from providing such information to Parentmodification or proposed modification thereto.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by discussions with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Proposal.
(ed) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies Corporations is a partyparty or under which any of the Acquired Corporations has any rights, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent. The Company also will promptly request each Person that has executed, within 12 months prior to the date of this Agreement, a confidentiality agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations, except for those Persons who have subsequent to such consideration entered into a commercial relationship with the Company.
(e) Nothing contained in this Section 4.3 shall prohibit the Company’s board of directors from taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement required by Rule 14d-9 promulgated under the Exchange Act; provided, however, that prior to taking any of the foregoing actions, the Company has complied with the applicable requirements of Section 5.2(c).
Appears in 3 contracts
Sources: Merger Agreement (Website Pros Inc), Merger Agreement (WEB.COM, Inc.), Merger Agreement (Website Pros Inc)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, directly nor shall it permit any of its Subsidiaries to, or indirectlyauthorize or permit any director, and shall cause the other Acquired Companies, its Representatives and the Representatives officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other Acquired Companies not advisor or representative of the Company or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate or encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action that could reasonably be expected knowingly to lead to an Acquisition Proposalfacilitate, any Takeover Proposal (as defined below) or (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage inenter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with any Person in respect ofto, or otherwise cooperate with respect to, in any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations way with, any Person Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining approval of the Company's shareholders as contemplated by Section 6.02 hereof, the Board of Directors of the Company may, in response to a bona fide written Acquisition Takeover Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which Board of Directors reasonably determines in good faith is reasonably likely to result in a Superior Proposal if an Adverse Recommendation Change (Aas defined below) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faithor, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputationadvisors, that such Acquisition Proposal is reasonably likely to lead to constitutes a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 6.04, (Dx) prior furnish information with respect to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following its Subsidiaries to the furnishing of nonpublic information person making such Takeover Proposal (and its representatives) pursuant to this Section 6.3(a)a confidentiality agreement with terms not more favorable to such person than the Confidentiality Agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal, provided that the Company shall provide have delivered to Parent any nonpublic information concerning any of the Acquired Companies prior written notice advising Parent that is furnished it intends to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result participate in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for such discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Personnegotiations. The Company shall keep Parent reasonably informed on a prompt basis as to will immediately cease all existing activities, discussions and negotiations with any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action parties conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any Acquisition Takeover Proposal effective as and request the return of the date hereof, (ii) request that all confidential information previously furnished regarding the Company and ELF provided to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject parties prior to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not date hereof pursuant to release or permit the release terms of any Person from, confidentiality agreements or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parentotherwise.
Appears in 3 contracts
Sources: Merger Agreement (Kellogg Co), Agreement and Plan of Restructuring and Merger (Keebler Foods Co), Agreement and Plan of Restructuring and Merger (Flowers Industries Inc /Ga)
No Solicitation. (a) During From and after the Pre-Closing Perioddate of this Agreement until the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall will not, directly and will not permit any of its Subsidiaries or indirectlyits or their respective directors, officers, investment bankers, affiliates, representatives and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not agents to, directly or indirectly, (i) solicit, initiate, encourageor knowingly encourage (including by way of furnishing non-public information), induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action to facilitate, any inquiries or proposals that constitute, or could reasonably be expected to lead to an to, any Company Acquisition Proposal, or (ii) furnish engage in, or enter into, any nonpublic information regarding negotiations or discussions concerning any Company Acquisition Proposal. Notwithstanding the foregoing, in the event that, notwithstanding compliance with the preceding sentence, prior to receipt of the Acquired CompaniesCompany stockholder approval, or provide any access to (x) the books, records or personnel Company receives a Company Acquisition Proposal that the board of any directors of the Acquired Companies, to any Person Company determines in connection good faith (after consultation with its outside legal and financial advisors) is or in response to an Acquisition Proposal or an inquiry or indication of interest that could may reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue a Company Superior Proposal that was not solicited by the Company or otherwise participate obtained in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(aSECTION 6.3, and (y) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit after the Company from furnishing nonpublic information regarding gives the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response Parent written notice of its intention to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Persondo so, the Company receives from may participate in discussions regarding such Person an executed confidentiality agreement containing customary limitations on the use Company Acquisition Proposal and disclosure of all nonpublic written and oral provide confidential information furnished to such Person by or on behalf of concerning the Company in order to be informed and customary “standstill” provisionsmake a determination with respect thereto. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a)In such event, the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, promptly inform Parent of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Company Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an promptly keep Parent informed of the status including any material change to the terms of any such Company Acquisition Proposal, and (iii) authorize or permit the Company promptly deliver to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier Parent copies of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished regarding the Company delivered by the Company to any third party be returned promptly and (iii) deny access to any data room containing any in connection with such information to any third party (other than Company Acquisition Proposal. As used herein, the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.term "COMPANY ACQUISITION 43
Appears in 3 contracts
Sources: Merger Agreement (Open Market Inc), Merger Agreement (Open Market Inc), Merger Agreement (Divine Inc)
No Solicitation. (a) During the Pre-Closing PeriodThe Company shall not and shall not authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, solicit or initiate, encourageor encourage the submission of, induce any Acquisition Proposal, or facilitate approve or authorize any inquiries of the foregoing, or (ii) participate in any discussions or negotiations regarding, or the makingfurnish to any person any information with respect to, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action to expedite any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that to the extent required by -------- ------- the fiduciary obligations of the Board of Directors of the Company, as determined in good faith by the Board of Directors based on the advice of outside counsel, the Company may, (A) in response to an unsolicited request therefor, furnish information with respect to the Company to any person pursuant to a customary confidentiality agreement and discuss such information with such person, (B) upon receipt by the Company of an Acquisition Proposal, following delivery to Sprint of the notice required pursuant to Section 4.07(b), participate in negotiations regarding such Acquisition Proposal, and (C) modify or withdraw the recommendation to accept the Offer contemplated by Section 1.02(a) or its recommendation that the stockholders of the Company vote in favor of the Company Stockholder Vote Matters as contemplated by Section 1.06(c).
(b) The Company shall (i) promptly notify Sprint of (A) the existence of any request for confidential information with respect to, or the receipt of, any Acquisition Proposal, (B) any inquiry or discussions with respect to, or which could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (ivC) approvethe execution of a confidentiality agreement with respect to an Acquisition Proposal, endorse or recommend any Acquisition Proposal or (vD) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative furnishing of any information in contemplation of the Acquired Companiesan Acquisition Proposal, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response pursuant to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposalconfidentiality agreement, (Bii) describe the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel terms and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company conditions of any Acquisition ProposalProposal in reasonable detail, any indication by and (iii) furnish to Sprint all information made available to any Person considering making the Acquisition, or contemplating the making of an Acquisition Proposal, any request for information relating subject to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any customary confidentiality agreement that would prohibit them from providing such information to Parentagreement.
(c) The Company Board and shall not take any action that would enhance the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into ability of any agreement (an “Acquisition Agreement”) contemplating other Person proposing an Acquisition Proposal to obtain the approval of the Company's stockholders or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions otherwise consummate such Acquisition Proposal (including granting any approval pursuant to Section 203 of the Ownership LimitationDGCL) applicable without also taking a comparable action that would similarly enhance the ability of Sprint to obtain any necessary approval of the Company's stockholders of, any Person (other than and otherwise to consummate, the Buyer Parties and their respective Affiliates) or any action taken transactions contemplated by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote this Agreement and the termination of this Agreement pursuant to Article XI, the Company Board Ancillary Agreements or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, an alternative transaction initiated by Sprint and concurrently withdrawing any impediments thereto that failure to take do not similarly impede such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresother Person.
(d) Until the earlier of the Merger Effective Time and the termination of Nothing contained in this Agreement pursuant to Article XI, Section 4.07 shall prohibit the Company shall immediately (i) cease from taking and cause disclosing to be terminated any existing solicitation, discussion, negotiation or other action conducted its stockholders a position contemplated by any of Rule 14e-2 under the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Exchange Act.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 3 contracts
Sources: Investment Agreement (Azeez Sidney), Investment Agreement (Earthlink Network Inc), Investment Agreement (Sprint Corp)
No Solicitation. (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and the Company shall cause the other Acquired Companies, use commercially reasonable efforts to ensure that its Representatives Subsidiaries and the respective Representatives of the other Acquired Companies not toSymyx Corporations do not, directly or indirectly, :
(i) solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Company Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Symyx Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an any Company Acquisition Proposal, ;
(iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofrelating to, or otherwise cooperate with respect that prior to such discussions or negotiations would reasonably be expected to give rise to, any Company Acquisition Proposal, ;
(iv) approve, endorse or recommend any Company Acquisition Proposal or Proposal; or
(v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction. Without limiting ; provided, however, that prior to the foregoingAcceptance Date, it is agreed that this Section 5.03(a) shall not prohibit the Company from furnishing information regarding the Symyx Corporations to, or entering into discussions and negotiations with, any violation Person if: (A) the Company shall have received from such Person a bona fide Company Acquisition Proposal that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, the Company Board determines in good faith is, or would reasonably be expected to result in, a Company Superior Offer (and such proposal has not been withdrawn); (B) such Company Acquisition Proposal did not result from any breach of, or any action inconsistent with, any of the restrictions provisions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement 5.03(a); (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (BC) the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s or the Special Committee’s its outside legal counsel, that failure to take such action would reasonably be inconsistent with expected to constitute a breach of the fiduciary obligations duties of the Company Board to the Company’s shareholders stockholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and law; (D) at least four Business Days prior to furnishing any such nonpublic information to to, or entering into discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure gives Parent written notice of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the such Person making such Acquisition Proposal and (iv) of the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to the Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (E) at least four Business Days prior to furnishing any information to such Person, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent or Made Available to Parent). Without limiting the foregoing, any violation of the restrictions contained in this Section 5.03(a) by any Subsidiary or Representative of the Company shall be deemed a breach of this Section 5.03(a) by the Company.
(b) During the Pre-Closing Period, the Company shall promptly (and in no event later than 24 hours) after receipt of any Company Acquisition Proposal: (i) advise Parent orally and in writing of any such Company Acquisition Proposal (including the identity of the Person making or submitting such Company Acquisition Proposal and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and (ii) provide to Parent a copy of any written Company Acquisition Proposal and a copy of all written materials (including copies of any written materials received via e-mail or other electronic medium) received by the Company in connection with such Company Acquisition Proposal. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding with respect to: (A) the status of any such Company Acquisition Proposal, indication, inquiry and (B) the status and terms of any material modification or requestproposed material modification thereto. None The Company shall provide Parent with 48 hours prior notice (or such lesser notice as is provided to the members of the Acquired Companies shall, after Company Board) of any meeting of the date hereof, enter into Company Board at which the Company Board is reasonably expected to consider any confidentiality agreement that would prohibit them from providing such information to ParentCompany Acquisition Proposal.
(c) The Company Board and the Special Committee may not (iSubject to Section 5.03(a) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendationshall, (ii) approveand shall cause its Representatives to, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any discussions existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request of this Agreement with any Person that all confidential information previously furnished relate to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Company Acquisition Proposal.
(ed) The Company agrees not to release or permit the release during the Pre-Closing Period of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which the Company or any of the Acquired Companies its Subsidiaries is a partyparty or under which the Company or any of its Subsidiaries has any rights, and will use its commercially reasonable best efforts during the Pre-Closing Period to enforce or cause each such agreement to be enforced each such agreement at the request of Parent.
(e) Notwithstanding anything to the contrary contained in Section 5.03 or elsewhere in this Agreement, at any time prior to the Acceptance Time, the Company Board may: (1) approve, endorse or recommend any Company Acquisition Proposal; and (2) refuse to reaffirm the Board Recommendation, refuse to publicly state that the Offer, the Merger and this Agreement are in the best interest of the Company’s stockholders or refuse to issue a press release announcing its opposition to a Company Acquisition Proposal (each of the foregoing actions described in clauses “(1),” and “(2)” being referred to as a “Company Change in Recommendation”):
(i) if: (A) an unsolicited Company Acquisition Proposal is made to the Company and is not withdrawn; (B) the Company Board determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Offer; (C) at least four Business Days prior to a Company Change in Recommendation, the Company provides Parent written notice of the Company Board’s intention to determine that such Company Acquisition Proposal is a Company Superior Offer; and (D) the Company Board determines in good faith, after having consulted with its outside legal counsel, that, in light of such Company Superior Offer, a failure to affect a Company Change in Recommendation could reasonably be expected to constitute a breach of the fiduciary duties of the Company Board to the Company’s stockholders under applicable law; or
(ii) if: (A) other than the development or circumstances contemplated by the preceding clause (i) of this Section 5.03(e), a material development or change in circumstances occurs or arises after the date of this Agreement that was neither known to any Symyx Corporation or any Representative of any Symyx Corporation nor reasonably foreseeable to any Symyx Corporation as of the date of this Agreement (such material development or change in circumstances being referred to as a “Company Intervening Event”); provided, however, that in no event shall the receipt, existence of or terms of a Company Acquisition Proposal or a Company Superior Offer or any inquiry relating thereto or the consequences thereof constitute a Company Intervening Event; (B) at least four Business Days prior (or such or such lesser notice as is provided to the members of the Company Board) to any meeting of the Company Board at which the Company Board will consider whether such Company Intervening Event requires the Company Board to effect, or cause the Company to effect, a Company Change in Recommendation, the Company provides Parent with a written notice specifying the date and time of such meeting; and (C) the Company Board determines in good faith, after having consulted with its outside legal counsel, that, in light of such Company Intervening Event, a failure to make a Company Change in Recommendation could reasonably be expected to constitute a breach of the fiduciary duties of the Company Board to the Company’s stockholders under applicable law.
Appears in 3 contracts
Sources: Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, directly nor shall it authorize or indirectlypermit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause the other Acquired Companies, its Representatives and the Company Subsidiaries’ Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encouragenegotiate, induce knowingly encourage or knowingly facilitate any inquiries regarding, or (including by way of furnishing non-public information) the making, submission, reaffirmation or announcement submission of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Company Takeover Proposal, (ii) furnish enter into any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, agreement with respect to any Person in connection with or in response to an Acquisition Company Takeover Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofregarding, or otherwise cooperate furnish to any person any information with respect to, or take any Acquisition other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, (iv) approveor afford access to properties, endorse books or recommend records of the Company or the Company Subsidiaries to, any Acquisition Person that made a Company Takeover Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting Person that has disclosed to the foregoing, Company that it is agreed that any violation contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the restrictions set forth Merger, in this addition to Section 6.3(a) by any Representative of any of 5.02(b), the Acquired CompaniesCompany may, whether or in response to an unsolicited bona fide Company Takeover Proposal which did not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be result from a breach of this Section 6.3(a5.02(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faithdetermines, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputationadvisors, that such Acquisition Proposal is is, or may reasonably likely be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a Superior customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (Dz) prior take, and disclose to furnishing the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such nonpublic information to such Person, position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company receives from such Person an executed confidentiality agreement containing customary limitations on Board shall not recommend that the use and disclosure Company’s stockholders tender their shares of all nonpublic written and oral information furnished to such Person by or on behalf of capital stock in the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), in connection with such tender offer or exchange unless the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parenthas complied with Section 5.02(b)).
(b) From and after the execution of this AgreementIf, except prior to the extent consummation of the Merger:
(i) (A) the Company Board has received a Superior Company Proposal or (B) the Company Board shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that doing so would result in a breach of its the failure to withdraw or modify the Company Recommendation may be reasonably expected to violate the fiduciary duties, each duties of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, Board under applicable Law,
(ii) the material terms and conditions Company has notified Parent in writing of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof the determination described in clause (if availablei) or if not in writing, a written description thereof, above,
(iii) the identity at least four (4) business days following receipt by Parent of the Person making notice received in clause (ii) above, and taking into account any revised proposal made by Parent since receipt of the notice referred to in clause (ii) above, the Company Board determines that such Acquisition Superior Company Proposal and remains a Superior Company Proposal, and
(iv) the Company’s intention to furnish information toCompany is in compliance with this Section 5.02, then the Company Board may withdraw or enter into discussions or negotiations with, such Person. The modify the Company shall keep Parent reasonably informed on a prompt basis Recommendation (as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parentdefined in Section 6.01(f)).
(c) The Company Board promptly, but in any event within five (5) business days after receipt thereof, shall advise Parent in writing of any Company Takeover Proposal, including the material terms and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Partiesconditions thereof, or fail any inquiry with respect to makeor that would reasonably be expected to lead to any Company Takeover Proposal. The Company shall promptly, but in any event no later than two (2) business days before providing information or entering into discussions with such third party, provide written notice to Parent of the Company Board Recommendation, (ii) approve, authorize Company’s intent to furnish information or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to discussions with such third party. The Company shall promptly provide Parent a copy of the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in ’s response to a Superior Company Takeover Proposal if and copies of any amendments or modifications to the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresTakeover Proposal.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 3 contracts
Sources: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Jorgensen Earle M Co /De/)
No Solicitation. (a) During the Pre-Closing PeriodThe Company and its Subsidiaries will not, and the Company shall notwill direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directly or indirectlydirectors, employees, investment bankers, consultants, attorneys, accountants, agents and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies representatives not to, directly or indirectly, (i) take any action to solicit, initiate, encourage, induce or knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal or take (including, without limitation, by granting any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any waiver under Section 203 of the Acquired Companies, DGCL) or provide any access to the books, records inquiry with respect thereto or personnel of any of the Acquired Companies, to any Person engage in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in with respect ofthereto (except to notify such Person of the existence of the provisions of this Section 7.8), or otherwise cooperate with respect todisclose any nonpublic information or afford access to properties, books or records to any Person that has made, or to the Company’s knowledge is considering making, any Acquisition Proposal, (iv) approveor approve or recommend, endorse or recommend any Acquisition Proposal propose to approve or (v) recommend, or execute or enter into any letter of intent, arrangementagreement in principle, understanding, merger agreement, option agreement, acquisition agreement in principle or other similar document or any Contract contemplating or otherwise agreement relating to any an Acquisition Transaction. Without limiting the foregoingProposal, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of or propose publicly or agree to do any of the Acquired Companies, whether or not such Person is purporting foregoing relating to act on behalf an Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of any Directors of the Acquired Companies Company from (i) complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal or otherwise(ii) making any disclosure if, in the case of this clause (ii), in the good faith judgment of the Company’s Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided that any such disclosure that relates to an Acquisition Proposal shall be deemed to be a breach Change in the Company Recommendation unless the Company’s Board of Directors reaffirms in such disclosure the Company Recommendation. The Company shall be permitted to make any “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) under the Exchange Act or complying with disclosure obligations under Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Acquisition Proposal shall not be a Change in the Company Recommendation so long as any action taken or statement made is consistent with this Section 6.3(a7.8 (including the immediately foregoing sentence) and provided that any such disclosure permitted by this sentence shall not permit the CompanyCompany Board of Directors to make a Change in the Company Recommendation except pursuant to Section 5.3. Notwithstanding the foregoing, from the date hereof and prior anything to the adoption of this Agreement by the Required Company Shareholder Vote, nothing contrary in this Agreement (including this Section 6.3(a)) shall, but subject to the first sentence of Section 6.3(b7.8(b), prohibit prior to (but not after) the date of the Company from furnishing nonpublic Stockholder Approval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information regarding the Acquired Companies toand access, or entering into or conducting discussions or negotiations with, any Person but only in response to a request for information or access, to any Person, and its representatives (including sources of financing), making a bona fide fide, written Acquisition Proposal that is submitted to the Board of Directors of the Company by after the date of this Agreement which was not obtained as a result of a breach of Section 5.2(a), Section 5.2(b) or this Section 7.8 and (B) participate in discussions and negotiate with such Person during or its representatives concerning any such period unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A) or (B) of this sentence, (1) the Board of Directors of the Company concludes in good faith, (x) after receipt of the advice of a financial advisor of nationally recognized reputation and not withdrawn) which is outside legal counsel, that such Acquisition Proposal constitutes or could reasonably likely be expected to result in a Superior Proposal if and (y) that failure to do so would be reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law and (2) the Company receives from the Person making such an Acquisition Proposal, prior to engaging in any of the activities described in clause (A) neither or (B) of this sentence, an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (i) no less favorable to the Company nor and (ii) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement. The Company agrees that any Representative material non-public information provided to such Person that has not previously been provided to Parent shall be provided to Parent prior to or substantially concurrently with the time it is provided to such Person. The Board of Directors of the Company shall not take any of the Acquired Companies actions referred to in the foregoing clauses (A) and (B) unless the Company shall have breached first delivered to Parent written notice advising Parent that the Company intends to take such action; provided that only one such notice need be given with respect to any specific Acquisition Proposal or violated amended or modified Acquisition Proposal.
(b) In the event that on or after the date of this Section 6.3(aAgreement the Company receives an Acquisition Proposal, or any request for nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or has informed the Company it is considering making, an Acquisition Proposal, the Company will (A) promptly (and in any respect that results no event later than twenty-four (24) hours after a director or senior executive officer of the Company becomes aware of such an Acquisition Proposal or request) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition ProposalProposal or request and set forth the material terms thereof) Parent thereof, (B) keep Parent reasonably and promptly informed of the Company Board status and material terms of (including with respect to changes to the status or its Special Committee concludes material terms of) any such Acquisition Proposal or request, and (C) as promptly as practicable (but in good faith, no event later than twenty-four (24) hours after consultation with the Company’s a director or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations senior executive officer of the Company Board becomes aware of receipt) provide to Parent unredacted copies of all material correspondence and material written materials (whether or not electronic) sent or provided to the Company’s shareholders under applicable Legal RequirementsCompany or any of its Subsidiaries that describes any terms or conditions thereof, including any proposed transaction agreements (along with all schedules and exhibits thereto and any financing commitments related thereto), as well as written summaries of any material oral communications relating to the terms and conditions thereof. The Company (x) shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date of this Agreement with any Persons with respect to any Acquisition Proposal or the possibility thereof, (Cy) shall promptly request each Person, if any, that has executed a confidentiality agreement within the Company Board or its Special Committee concludes nine (9) months prior to the date of this Agreement in good faith, after consultation connection with its legal counsel and an independent financial advisor consideration of nationally recognized reputation, that such any Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic return or destroy all confidential information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (z) immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company and customary “standstill” provisionsor any of its Subsidiaries. As promptly as reasonably practicable following the furnishing The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of nonpublic information pursuant any confidentiality or standstill agreement (or any similar agreement) to this Section 6.3(a), which the Company shall provide to Parent any nonpublic information concerning or any of the Acquired Companies that its Subsidiaries is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information party relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) shall enforce the Company’s intention provisions of any such agreement; provided that the Company shall be permitted on a confidential basis, upon written request by a relevant party thereto and without prior notice to furnish information toParent disclosing the party and the circumstances, to release or enter into discussions or negotiations with, such Personwaive any standstill obligations solely to the extent necessary to permit the party referred therein to submit an Acquisition Proposal to the Board of Directors of the Company on a confidential basis. The Company shall keep provide written notice to Parent reasonably informed on a prompt basis as to of any material developments regarding any such Acquisition Proposal, indication, inquiry waiver or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit standstill by the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentCompany.
Appears in 3 contracts
Sources: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regardingrelating to, or the makingsubmission of, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, regarding any Acquisition Proposal, (iv) approveor in connection with any Acquisition Proposal, endorse or recommend furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (viii) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of the date hereof, directors from (iix) request that all confidential information previously furnished to any third party be returned promptly taking and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject disclosing to the Company’s rights stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and obligations 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 6.3(a5.3(b).
(e) The , withdraw or modify, or propose to withdraw or modify, the Company agrees not Board Recommendation or approve or recommend, or propose to release approve or permit recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the release of Company will immediately cease any existing activities, discussions or negotiations with any Person from, or conducted heretofore with respect to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a partySuperior Proposal (as defined below), and will use its reasonable best efforts provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to enforce or cause such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be enforced each disclosed by the Company to Parent by this Section 5.3) if:
(x) such agreement at the request of Parent.Person or group has submitted a Superior Proposal;
Appears in 3 contracts
Sources: Merger Agreement (Borland Software Corp), Merger Agreement (Starbase Corp), Merger Agreement (Borland Software Corp)
No Solicitation. (a) During The Company agrees that it shall immediately cease and cause to be terminated all existing discussions, negotiations and communications with any Persons with respect to any Acquisition Proposal and request the Pre-Closing Periodreturn of all information provided to any third party pursuant to a confidentiality agreement or otherwise in connection with such discussions, negotiations or communications. From the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall notnot and shall not authorize or permit its officers, directors, employees, investment bankers, attorneys, accountants, affiliates or other agents (collectively, "Representatives") to directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, indirectly (i) initiate, solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could to facilitate the making of, any offer or proposal which constitutes or which may be reasonably be expected likely to lead to an Acquisition Proposal, (ii) furnish enter into any nonpublic information regarding agreement with respect to any Acquisition Proposal, or (iii) in the event of an unsolicited Acquisition Proposal for the Acquired CompaniesCompany, engage in any negotiations or discussions with, or provide any access to the booksinformation or data to, records any Person (other than Parent or personnel of any of its affiliates or representatives) relating to any Acquisition Proposal.
(b) Notwithstanding the Acquired Companiesforegoing, to nothing contained in this Section 6.3 or elsewhere in this Agreement shall prohibit the Company or the Company Board of Directors (or the Special Committee) from (1) in the event of an unsolicited Acquisition Proposal, requesting all such information from and having such discussions with any Person in connection with or in response therewith as may be necessary for the Company Board of Directors (and the Special Committee) to an inform themselves fully as to all material terms and conditions (including the price, structure, intended accounting and tax treatment, closing conditions, anticipated closing date, likelihood of consummation, creditworthiness of the intended purchaser and requisite regulatory approvals) of such Acquisition Proposal and providing all such material, non-public information or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate data with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by to such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither prior to providing such information or data and having any such discussions, the Company nor any Representative Board of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect Directors receives from such Person an executed confidentiality agreement having provisions that results are customary in such agreements relative to proposed transactions such as the Acquisition Proposal, as advised by outside legal counsel, and otherwise containing terms and provisions no less restrictive than those contained in the Confidentiality Agreement and (B) the Company Board of Directors (and the Special Committee) shall have determined, in good faith after consultation with outside legal counsel, that the failure to take such action, provide such information or data or have discussions for the purpose of becoming so fully informed would be inconsistent with its Special Committee concludes fiduciary duties under applicable law; provided that, after having determined in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that each of the Company Board of Directors and the Special Committee is fully informed with respect to the material terms and conditions of such Acquisition Proposal and the proponent thereof, neither the Company nor any of its Representatives shall be permitted to engage in any discussions with such Person that would violate this Section 6.3, or (2) (i) withdrawing, modifying, or qualifying (or publicly proposing to withdraw, modify, or qualify) the recommendation by the Company Board of Directors (and the Special Committee) to the Company's shareholders to vote in favor of the adoption of this Agreement; provided that the Company Board of Directors (and the Special Committee) shall have determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law, or (ii) making such other disclosure to the fiduciary obligations Company's shareholders as in the good faith judgment of the Company Board to of Directors (and the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faithCommittee), after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders is necessary under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedureslaw.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 3 contracts
Sources: Merger Agreement (Polyvision Corp), Merger Agreement (Polyvision Corp), Agreement and Plan of Merger (Polyvision Corp)
No Solicitation. (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, Company shall: (x) ensure that its Representatives and the Representatives of the other Acquired Companies not toSubsidiaries do not, directly or indirectly; and (y) use its commercially reasonable efforts to ensure that the respective Representatives of the Acquired Corporations do not, directly or indirectly:
(i) solicit, initiate, knowingly encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, Inquiry;
(ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, Inquiry;
(iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, Proposal or Acquisition Inquiry;
(iv) approve, endorse or recommend any Acquisition Proposal or Acquisition Inquiry; or
(v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing; provided, it is agreed however, that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder VoteStockholders' Meeting, nothing in this Agreement (including this Section 6.3(a)4.3(a) shall, subject to Section 6.3(b), shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Companies Corporations to, or entering into or conducting discussions or and negotiations with, any Person in response to a bona fide written an Acquisition Proposal that is submitted to the Company made by such Person during such period (and not withdrawn) which is that constitutes, or could reasonably likely be expected to result in the submission by such Person to the Company of, a Superior Proposal if Offer if: (A) neither the Company nor any Representative of any of the Acquired Companies Corporations shall have breached or violated any of the provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal, 4.3; (B) the board of directors of the Company Board or its Special Committee concludes in good faith, after consultation with having taken into account the Company’s or the Special Committee’s advice of its outside legal counsel, that failure to take such action would be inconsistent with is required in order for the fiduciary obligations board of directors of the Company Board to comply with its fiduciary obligations to the Company’s shareholders 's stockholders under applicable Legal Requirements, law; (C) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company Board gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or its Special Committee concludes enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and "standstill" provisions) at least as favorable to the Company as the provisions of the Confidentiality Agreement as in good faith, after consultation with its legal counsel and an independent financial advisor effect immediately prior to the execution of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal this Agreement; and (D) at least two business days prior to furnishing any such nonpublic information to such Person, the Company receives from furnishes such Person an executed confidentiality agreement containing customary limitations on nonpublic information to Parent (to the use and disclosure of all extent such nonpublic written and oral information has not been previously furnished by the Company to such Person by or on behalf Parent). Without limiting the generality of the Company foregoing (and customary “standstill” provisions. As promptly as reasonably practicable following notwithstanding the furnishing reference to "commercially reasonable efforts" in the language immediately preceding clause "(i)" of nonpublic information pursuant to this Section 6.3(a4.3(a)), the Company shall provide to Parent acknowledges and agrees that any nonpublic information concerning breach of any of the provisions set forth in the preceding sentence by any affiliate, director, officer, agent or attorney of any of the Acquired Companies Corporations, whether or not such affiliate, director, officer, agent or attorney is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. For purposes of this Agreement, an affiliate, director, officer, agent or attorney of an Acquired Corporation, or any other Person, shall be deemed to have breached a provision of this Section 4.3 if such affiliate, director, officer, agent or attorney or other Person takes any action that is furnished would constitute a breach by the Company of such provision were the Company to any third Person or its Representatives which was not previously provided to Parenttake such action directly.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the The Company Parties shall promptly, promptly (and in any no event within forty-eight (48) later than 48 hours following the initial after receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Proposal or Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition ProposalInquiry) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, or Acquisition Inquiry (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and (ivthe terms thereof) that is made or submitted by any Person during the Company’s intention to furnish information to, or enter into discussions or negotiations with, such PersonPre-Closing Period. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding with respect to: (i) the status of any such Acquisition Proposal, indication, inquiry Proposal or request. None Acquisition Inquiry; and (ii) the status and terms of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parentmodification or proposed modification thereto.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by discussions with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)or Acquisition Inquiry.
(ed) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “non-solicitation, no hire, "standstill” " or similar agreement Contract to which any of the Acquired Companies Corporations is a partyparty or under which any of the Acquired Corporations has any rights, and will use its commercially reasonable best efforts to enforce or cause each such agreement to be enforced each such agreement at the request of Parent. The Company also shall promptly request each Person that has executed a confidentiality or similar agreement within the last 12 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in any Acquired Corporation to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.
Appears in 3 contracts
Sources: Merger Agreement (Macromedia Inc), Merger Agreement (Adobe Systems Inc), Merger Agreement (Adobe Systems Inc)
No Solicitation. (a) During the Pre-Closing Periodterm of this Agreement, the Company Stockholders shall not, nor shall they permit any of their Subsidiaries or any officer or employee of any Stockholder or any of their Subsidiaries to, nor shall they authorize any director of, or any Representative (as defined in the Merger Agreement) of, any Stockholder or any of their Subsidiaries to, and shall instruct each of them not to, except, if any of them is a director of the Company or any Stockholder, as the case may be, as required in order to comply with such individual’s fiduciary duties as a director of the Company or any Stockholder, as the case may be, as specifically permitted by Section 3.06, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (i) solicit, initiate, encourage, initiate or knowingly induce or facilitate encourage the submission of, any inquiries regardingCompany Takeover Proposal (as hereinafter defined); (ii) enter into any letter of intent or agreement in principle or any agreement providing for, relating to or the makingin connection with, submission, reaffirmation or announcement of any Acquisition Company Takeover Proposal or take any action proposal that could reasonably be expected to lead to an a Company Acquisition Proposal, Transaction (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, as hereinafter defined); (iii) engage inapprove, endorse or recommend any Company Takeover Proposal; (iv) enter into, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Company Takeover Proposal, (iv) approve, endorse or recommend any Acquisition Proposal ; or (v) enter into furnish any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic non-public information regarding the Acquired Companies Company or any of its Subsidiaries to, or entering into or conducting discussions or negotiations withafford access to the properties, books and records of the Company to, any Person in connection with or in response to a bona fide written Acquisition Proposal any Company Takeover Proposal; provided, however, that is submitted nothing contained in this Agreement shall prohibit any Stockholder or its board of directors, directly or indirectly through any of its officers, directors, employees or Representatives, prior to obtaining the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of Manchester Shareholder Approval, from taking any of the Acquired Companies shall have breached or violated this Section 6.3(aactions described in clauses (iv) and (v) above in response to any respect unsolicited bona fide Company Takeover Proposal that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations board of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee directors of Manchester concludes in good faith, after consultation with its legal counsel and an independent outside financial advisor of nationally recognized reputationadvisors, that such Acquisition Proposal constitutes or is reasonably likely expected to lead to result in, a Superior Proposal (as hereinafter defined) if (and only if) (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i1) the receipt, directly or indirectly, board of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions directors of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee Manchester concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) its outside legal counsel, that the failure to take such action with respect to such Company Takeover Proposal would be inconsistent with the exercise by the board of directors of its fiduciary obligations duties to Manchester (including to the shareholders of Manchester) under applicable Law and (2) prior to furnishing any non-public information to, or entering into discussions or negotiations with, the Person making such Company Takeover Proposal (the “Third Party”), (x) the Stockholders receive from such Third Party an executed confidentiality agreement with provisions not less favorable to the Stockholders or the Company than those contained in the Confidentiality Agreement (as defined in the Merger Agreement) and (y) the Stockholders provide to Emerald and the Company in accordance with Section 3.04(b) the information required under Section 3.04(b) to be delivered by the Stockholders to Emerald. The Stockholders agree that they and their Subsidiaries shall not enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that prohibits the Stockholders from providing information to the Company and Emerald that is required to be provided to the Company or Emerald under this Section 3.04.
(b) The Stockholders shall promptly, and in any event no later than twenty-four (24) hours after they receive any Company Takeover Proposal, or any written request for non-public information regarding the Company or any of its Subsidiaries in connection with a Company Takeover Proposal, advise the Company and Emerald orally and in writing of such Company Takeover Proposal or request, including providing the identity of the Person making or submitting such Company Board Takeover Proposal or request, and, (i) if it is in writing, a copy of such Company Takeover Proposal and any related draft agreements and any other written material and (ii) if oral, a reasonably detailed summary thereof that is made or submitted by such Person. The Stockholders shall keep Emerald and the Company informed in all material respects on a prompt basis of the status and details of any such Company Takeover Proposal or with respect to any change to the Company’s shareholders material terms of any such Company Takeover Proposal. The Stockholders agree that, subject to restrictions under Laws applicable Legal Requirementsto the Stockholders and their Subsidiaries, but only after they shall promptly provide to Emerald any non-public information concerning the Company and its Subsidiaries that the Stockholders provide to any Third Party in connection with any Company Takeover Proposal which was not previously provided to Emerald.
(c) Immediately following the Superior Proposal Termination Proceduresexecution of this Agreement, the Stockholders shall, and shall cause their Subsidiaries and their and their Subsidiaries’ respective officers, directors and employees, and shall cause their and their Subsidiaries’ respective Representatives to, immediately cease and terminate any activities, discussions or negotiations existing as of the date of this Agreement between the Stockholders or any of their Subsidiaries or any of their respective officers, directors, employees or Representatives, on the one hand, and any other Person, on the other hand, with respect to any Company Takeover Proposal.
(d) Until For purposes of this Agreement, (x) a “Company Takeover Proposal” means any inquiry, offer or proposal by any Person (other than Emerald) relating to any Company Acquisition Transaction, (y) a “Company Acquisition Transaction” means any transaction or series of related transactions other than the earlier Merger or as contemplated by the Framework Agreement involving: (i) any acquisition or purchase from the Stockholders, the Company or both the Stockholders and the Company by any Person of 20% or more of the total outstanding voting securities of the Company or any of its Subsidiaries; (ii) any tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the total outstanding voting securities of the Company or any of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization or similar transaction involving the Company pursuant to which the stockholders of the Company immediately preceding such transaction hold less than 80% of the equity interests in the surviving or resulting entity of such transaction; (iv) any direct or indirect acquisition of any business or businesses or of assets (including equity interests in any Subsidiary) that constitute or account for 20% or more of the consolidated net revenues, net income or assets (based on the fair market value thereof) of the Company and its Subsidiaries, taken as a whole; or (v) any liquidation or dissolution of the Company or any of its Subsidiaries, and (z) a “Superior Proposal” means an unsolicited, bona fide written Company Takeover Proposal to acquire at least (a) 50% of the outstanding voting securities of the Company or (b) 50% of the assets of the Company and its Subsidiaries, taken as a whole, in each case on terms that, in the reasonable good faith judgment of the board of directors of Manchester, after consultation with its outside financial advisors and its outside legal counsel, is more favorable to the shareholders of Manchester than the Coniston Transaction and the other transactions contemplated by the Framework Agreement, taking into account any proposal by Emerald or the Company, as applicable, to amend or modify the terms of the Merger Effective Time Agreement or the Framework Agreement that are committed to in writing, after taking into account such factors, including terms, conditions, timing, likelihood of consummation, legal, financial, regulatory and other aspects of such proposal, and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any Person making such information to any third party (other than the Buyer Parties and their respective Representatives)proposal, in each case, subject to case as deemed relevant by the Company’s rights and obligations in Section 6.3(a)board of directors of Manchester.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 3 contracts
Sources: Voting Agreement (Misys PLC), Voting Agreement (Allscripts-Misys Healthcare Solutions, Inc.), Voting Agreement (Eclipsys Corp)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, not directly or indirectly, and shall cause the other Acquired Companies, not authorize or permit either of its Representatives and the Representatives Subsidiaries or any Representative of any of the other Acquired Companies not to, Corporations directly or indirectlyindirectly to, (i) solicit, initiate, intentionally encourage, intentionally induce or intentionally facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal (whether by amending, or granting any waiver under, the Company Rights Agreement or otherwise) or take any action that could would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could would reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing; PROVIDED, it is agreed HOWEVER, that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of Acceptance Date (and subject to the Company's right to terminate this Agreement by the Required Company Shareholder Votepursuant to Section 8.1(h)), nothing in this Agreement (including this Section 6.3(a)5.3(a) shall, subject to Section 6.3(b), shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Companies Corporations to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal Superior Offer that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A1) neither such Superior Offer shall not have resulted directly or indirectly from any breach of this Section 5.3 or from any action taken by the Company nor or any Representative of its Representatives with the intent of circumventing any of the Acquired Companies shall have breached or violated provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal5.3, (B2) the board of directors of the Company Board or its Special Committee concludes in good faith, after consultation with having taken into account the Company’s or the Special Committee’s advice of its outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary obligations of the Company Board Company's board of directors to the Company’s shareholders 's stockholders under applicable Legal Requirements, (C3) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) at least one business day prior to furnishing any such nonpublic information to to, or entering into discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure gives Parent written notice of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the such Person making such Acquisition Proposal and (iv) of the Company’s 's intention to furnish information to, or enter into discussions or negotiations with, such Person. The , and the Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any receives from such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any Person an executed confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation containing provisions (including the Ownership Limitation"standstill" provisions) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresno less 41.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 3 contracts
Sources: Merger Agreement (Triangle Pharmaceuticals Inc), Merger Agreement (Triangle Pharmaceuticals Inc), Merger Agreement (Gilead Sciences Inc)
No Solicitation. (a) During the Pre-Closing Period, the Company Cameron shall not, directly or indirectly, and shall cause its Subsidiaries not to, and shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, advisors, agents and other representatives (with respect to any person, the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies foregoing persons are referred to herein as such person’s “Representatives”) not to, directly or indirectly, (i) take any action to solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected inquiry with respect thereto, or engage in, continue or otherwise participate in discussions or negotiations with any person with respect thereto (except to lead to an Acquisition Proposalnotify such person of the existence of the provisions of this Section 8.3), (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any afford access to the booksproperties, books or records or personnel of to any of the Acquired Companiesperson that has made or, to the knowledge of Cameron, is considering making, any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue approve or otherwise participate in any discussions or negotiations with any Person in respect ofrecommend, or otherwise cooperate with respect topropose to approve or recommend, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal execute or (v) enter into any letter of intent, arrangementagreement in principle, understanding, merger agreement, stock purchase agreement, asset purchase agreement in principle or similar document stock exchange, or any Contract contemplating or otherwise option agreement, relating to any an Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in Proposal (other than confidentiality agreements contemplated by this Section 6.3(a8.3), or (iv) by any Representative of propose publicly or agree to do any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Companyforegoing. Notwithstanding the foregoing, from prior to (but not after) the occurrence of the Cameron Stockholder Approval, Cameron may, directly or indirectly through its Representatives (A) contact any person making an Acquisition Proposal to clarify the terms and conditions thereof or to inform such person that any Acquisition Proposal made orally can only be considered if made in writing, (B) furnish information and access, but only in response to a written request for information or access, to any person making an Acquisition Proposal to the Cameron Board after the date hereof which was not solicited, initiated, knowingly encouraged or knowingly facilitated by Cameron or any of its affiliates or any Representative of Cameron or any of its Subsidiaries on or after the date hereof and prior to the adoption (C) participate in discussions and negotiate with such person concerning any such unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (B) or (C) of this Agreement by the Required Company Shareholder Votesentence, nothing in this Agreement (including i) Cameron has not breached this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a8.3(a) in any material respect that results in with respect to such Acquisition Proposal, (Bii) the Company Cameron Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations receipt of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent advice of a financial advisor of nationally recognized reputationreputation and outside legal counsel, that such Acquisition Proposal is reasonably likely to lead to result in a Superior Proposal Proposal, and (Diii) prior to furnishing any such nonpublic information to such Person, the Company Cameron receives from the person making such Person an Acquisition Proposal an executed confidentiality agreement containing customary limitations on the use material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (x) no less favorable in the aggregate to Cameron and disclosure (y) no less restrictive in the aggregate to the person making such Acquisition Proposal than those contained in the Confidentiality Agreement dated June 11, 2015 between a subsidiary of all nonpublic written Schlumberger and oral Cameron (the “Confidentiality Agreement”), and for the avoidance of doubt, any such confidentiality agreement need not include explicit or implicit standstill restrictions or otherwise restrict the making of or amendment or modification to any Acquisition Proposal, and any information furnished provided to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not person has previously been provided to ParentSchlumberger or is provided to Schlumberger substantially concurrently with its provision to such person.
(b) From Except as expressly permitted by this Section 8.3(b), the Cameron Board shall recommend approval and after adoption of this Agreement and the execution Merger by Cameron’s stockholders, and unless permitted by this Section 8.3(b), neither the Cameron Board nor any committee thereof shall (i) fail to make, withdraw, modify or qualify, or propose publicly to withhold, withdraw, modify or qualify, in any manner adverse to Schlumberger or its affiliates, the approval of this Agreement, the Merger or the Cameron Recommendation, except for notice provided to Schlumberger with respect to such Acquisition Proposal and Cameron’s views thereof prior to any definitive Change in Recommendation (any of the foregoing, a “Change in Recommendation”) or (ii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal. For purposes of this Agreement, a Change in Recommendation shall include any approval, endorsement or recommendation (or public proposal to approve, endorse or recommend), by the Cameron Board or any committee thereof of an Acquisition Proposal, but shall not include any notice provided to Schlumberger with respect to such Acquisition Proposal and Cameron’s views thereof prior to any definitive Change in Recommendation. Notwithstanding the foregoing, the Cameron Board shall be permitted not to recommend to Cameron’s stockholders that they give the Cameron Stockholder Approval, to withhold, withdraw, modify or qualify, or propose to publicly withhold, withdraw, modify or qualify, in a manner adverse to Schlumberger or its affiliates the Cameron Recommendation, or to approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, only if and to the extent that doing so would result in a breach of its fiduciary duties, each all of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of conditions are met: (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, Cameron Stockholder Approval has not been obtained; (ii) the Cameron Board determines in good faith, after consulting with outside legal counsel, that failure to so withhold, withdraw, modify or qualify the Cameron Recommendation would be inconsistent with the directors’ exercise of their fiduciary duties to stockholders under Applicable Law; and (iii) before taking any such action, Cameron promptly gives Schlumberger three business days written notice advising Schlumberger of the decision of the Cameron Board to take such action; provided, however, that notwithstanding any Change in Recommendation, unless this Agreement is terminated in accordance with the terms hereof, Cameron shall nevertheless submit this Agreement and the Merger to the stockholders of Cameron for the purpose of obtaining the Cameron Stockholder Approval at the Cameron Stockholders Meeting and nothing contained herein shall be deemed to relieve Cameron of such obligation, unless Schlumberger otherwise directs Cameron in writing or this Agreement shall have been terminated in accordance with its terms prior to the Cameron Stockholders Meeting. In addition, notwithstanding the foregoing, Cameron may terminate this Agreement, upon payment of the Cameron Termination Fee in accordance with Section 10.5(a), in order to enter into any agreement, understanding or arrangement providing for an Acquisition Proposal if all of the following conditions are met: (x) the Cameron Stockholder Approval has not been obtained, (y) Cameron gives Schlumberger written notice at least three business days prior to taking such action, which notice advises Schlumberger of the intention of the Cameron Board to take such action and such notice specifies the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) Proposal and identifies the identity of the Person person making such Acquisition Proposal (provided that if there are any subsequent changes in the financial terms of such proposal, Cameron will not take any such action prior to the second business day following a subsequent notice to Schlumberger of such changes) (it being understood that there may be multiple extensions); and (ivz) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any Cameron Board determines in good faith that such Acquisition Proposal, indication, inquiry or request. None Proposal constitutes a Superior Proposal and does not revoke such determination notwithstanding any revisions to the terms of the Acquired Companies shall, Merger or this Agreement proposed by Schlumberger after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information being notified pursuant to Parentclause (y).
(c) The Company Board and In the Special Committee may not (i) withdrawevent Cameron receives an Acquisition Proposal, qualify or modify, in a manner adverse any request for nonpublic information relating to Cameron or any Subsidiary of Cameron or for access to the Buyer Partiesproperties, books or fail records of Cameron or any Subsidiary of Cameron by any person that has made or, to the knowledge of Cameron, would reasonably be expected to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, Cameron will (iiii) authorize or permit the Company to enter into as promptly as practicable (and in no event later than 24 hours after receipt of any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or request) notify (ivwhich notice shall be provided orally and confirmed in writing and shall identify the person making such Acquisition Proposal or request and set forth the material terms thereof, to the extent known) permit Schlumberger thereof and (ii) will keep Schlumberger reasonably and promptly informed of the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions status and material terms of (including the Ownership Limitation) applicable with respect to changes to the Company, any Person (other than the Buyer Parties and their respective Affiliatesstatus or material terms of) or any action taken by any such Person, which Person Acquisition Proposal or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresrequest.
(d) Until Subject to Schlumberger’s rights under Article 10, nothing in this Section 8.3 shall prohibit the earlier Cameron Board from taking and disclosing to Cameron’s stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Merger Effective Time and Exchange Act, or other Applicable Law, if the termination Cameron Board, after consultation with outside legal counsel, determines in good faith that the failure to so disclose such position would reasonably be expected to be inconsistent with the directors’ exercise of this Agreement pursuant their fiduciary obligations to Article XICameron’s stockholders under Applicable Law; provided, however, that the Company shall immediately Cameron Board may only make a Change in Recommendation to the extent that the Cameron Board has complied with the requirements of Section 8.3(b).
(e) Cameron (i) shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated and shall use reasonable best efforts to cause its and their Representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives persons with respect to any Acquisition Proposal effective as of the date hereof, and (ii) shall promptly request each person, if any, that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.has executed
Appears in 2 contracts
Sources: Merger Agreement (Cameron International Corp), Merger Agreement (Schlumberger LTD /Nv/)
No Solicitation. (a) During the Pre-Closing Period, None of the Company or Parent (each, a “No-Shop Party”) or their respective Subsidiaries or any Representative of such No-Shop Party or any of its Subsidiaries shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, indirectly (i) solicit, initiate, encourageknowingly encourage or knowingly facilitate, induce directly or facilitate any inquiries regardingindirectly (including by way of furnishing non-public information), or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action that could reasonably be expected designed to lead to facilitate, any inquiry or proposal regarding an Alternative Transaction involving such No-Shop Party or any of its Subsidiaries (an “Acquisition Proposal, ”); (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations regarding an Alternative Transaction; or (iii) enter into any agreement regarding any Alternative Transaction. Notwithstanding the foregoing, a No-Shop Party shall be permitted, prior to the obtaining of the Stockholder Approval of such No-Shop Party, and subject to first entering into a confidentiality agreement with the Person proposing such Acquisition Proposal on terms substantially similar to, and no less favorable to such No-Shop Party than, those contained in the Confidentiality Agreement, to (i) furnish information (including non-public information) concerning such No-Shop Party and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives and afford such Person and its Representatives access to the business, properties, assets, Contracts, officers, employees, books and records of such No-Shop Party and its Subsidiaries; provided, however, that such No-Shop Party shall substantially concurrently with the delivery to such Person provide to the Other Party any non-public information or access that is provided or made available to such Person or its Representatives unless such information or access has been previously been provided or made available to the Other Party; and (ii) consider and participate in discussions and negotiations with respect ofto such Acquisition Proposal received by such No-Shop Party, in each case, if and only to the extent that (A) such Acquisition Proposal is an unsolicited, bona fide written Acquisition Proposal made after the date of this Agreement; (B) such Acquisition Proposal did not result from a breach of this Section 6.11(a), and (C) the Board of such No-Shop Party reasonably determines in good faith (after consultation with outside legal counsel) that such Acquisition Proposal is, or otherwise cooperate is reasonably likely to lead to, a Superior Proposal.
(b) Other than in accordance with respect toSection 6.11(c) or Section 6.11(e) below, the Board of a No-Shop Party shall not (i) fail to make the Company Recommendation or the Parent Recommendation, as the case may be; (ii) withdraw or modify or qualify in a manner adverse to the Other Party, or publicly propose to withdraw or modify or qualify in a manner adverse to Other Party, the Company Recommendation or the Parent Recommendation, as the case may be; (iii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, ; (iv) approvefail to reaffirm the Company Recommendation or the Parent Recommendation, endorse or recommend any as the case may be, within three Business Days upon the request of the Other Party (provided, however, that the Other Party may make such request only following the public announcement of an Acquisition Proposal and then only once for each Acquisition Proposal; provided, further, that the Other Party may make another request every time any material revisions are made to such Acquisition Proposal (it being agreed that any change in the purchase price in such Acquisition Proposal shall be deemed a material revision)); or (v) fail to include the Company Recommendation or Parent Recommendation (as the case may be) in the Joint Proxy Statement (any action described in clauses (i) through (v) a “Change in Company Recommendation” or a “Change in Parent Recommendation,” as applicable).
(c) Notwithstanding anything to the contrary in this Section 6.11, at any time prior to obtaining the Company Stockholder Approval or Parent Stockholder Approval, as applicable, if a No-Shop Party has received a bona fide written Acquisition Proposal that was not obtained in violation of Section 6.11(a), that has not been withdrawn or abandoned and that the Board of such No-Shop Party has concluded in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by the Other Party pursuant to clause (ii) below (if applicable), the Board of such No-Shop Party may (1) effect a Change in Company Recommendation or a Change in Parent Recommendation, as applicable; and/or (2) terminate the Agreement to enter into a definitive agreement regarding a Superior Proposal if the following conditions are met:
(i) in the case of any letter action described in either clause (1) or clause (2) above, the Board of intentsuch No-Shop Party shall have determined in good faith that such action is necessary in order to comply with the fiduciary duties of its directors under applicable Law;
(ii) in the case of any action described in either clause (1) or clause (2) above, arrangement(A) such No-Shop Party shall have provided prior written notice to the Other Party in accordance with Section 9.2 (the “Superior Proposal Notice”) of its intention to effect a Change in Company Recommendation or a Change in Parent Recommendation, understandingas applicable, agreementand/or terminate the Agreement, agreement which Superior Proposal Notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the Person making such Superior Proposal), and contemporaneously with providing such Superior Proposal Notice shall have provided a copy of the relevant proposed transaction agreements with the Person making such Superior Proposal and other material documents; (B) during the period that commences on the date of delivery of the Superior Proposal Notice as determined in principle or similar document accordance with Section 9.2 and ends at 11:59 p.m. Central time on the date that is the fifth Business Day following the date of such delivery (the “Superior Proposal Notice Period”), such No-Shop Party shall, and shall cause its Representatives to, negotiate with the Other Party and its Representatives in good faith (to the extent the Other Party desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal; and (C) the Board of such No-Shop Party shall have considered all revisions to the terms of this Agreement irrevocably offered in writing by the Other Party and, at the end of the Superior Proposal Notice Period, shall have determined in good faith that such Acquisition Proposal continues to constitute a Superior Proposal even if such revisions were to be given effect. In the event that during the Superior Proposal Notice Period any revisions are made to such Acquisition Proposal and the Board of such No-Shop Party in its good faith judgment determines such revisions are material (it being agreed that any change in the purchase price in such Acquisition Proposal shall be deemed a material revision), the No-Shop Party shall be required to deliver a new Superior Proposal Notice and to comply with the requirements of this Section 6.11(c) with respect to such new Superior Proposal Notice (except that the Superior Proposal Notice Period shall end at 11:59 p.m. Central time on the date that is the second Business Day following the date of the delivery of such Superior Proposal Notice); and
(iii) in the case of any action described in clause (2) above, such No-Shop Party shall have (A) complied in all material respects with its obligations under this Section 6.11; and (B) paid the applicable Termination Fee to the Other Party in accordance with Section 8.3(d).
(d) Each No-Shop Party shall notify the Other Party promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal, or any Contract contemplating material modification of or otherwise relating material amendment to any Acquisition TransactionProposal, or any request for non-public information relating to such No-Shop Party or any of its Subsidiaries or for access to the business, properties, assets, Contracts, officers, employees, books and records of such No-Shop Party and its Subsidiaries by any Person that informs such No-Shop Party or any of its Subsidiaries that it is considering making, or has made, an Acquisition Proposal. Without limiting Such notice to the Other Party shall be made orally and in writing and shall indicate the identity of the Person making the Acquisition Proposal or intending to make or considering making an Acquisition Proposal or requesting non-public information or access to the business, properties, assets, Contracts, officers, employees, books and records of such No-Shop Party or any of its Subsidiaries, and the material terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal. Each No-Shop Party shall keep the Other Party informed as fully as reasonably practical on a prompt basis, and in any event within 24 hours, of any material changes in the status and any material changes or modifications in the terms of any such Acquisition Proposal, indication or request. Each No-Shop Party shall also promptly, and in any event within 24 hours, notify the Other Party, orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal in accordance with this Section 6.11.
(e) Notwithstanding anything to the contrary in this Section 6.11, at any time prior to obtaining the Company Stockholder Approval or Parent Stockholder Approval, as applicable, in circumstances not involving or relating to an Acquisition Proposal, if the Board of such No-Shop Party has concluded in good faith (after consultation with its financial advisors and outside legal counsel) that that such action is necessary in order to comply with the fiduciary duties of its directors under applicable Law, after giving effect to all of the adjustments which may be offered by the Other Party pursuant to clause (ii) below (if applicable), the Board of such No-Shop Party may effect a Change in Company Recommendation or a Change in Parent Recommendation, as applicable, if the following conditions are met:
(i) such No-Shop Party shall have provided prior written notice to the Other Party in accordance with Section 9.2 (the “Fiduciary Notice”) of its intention to effect a Change in Company Recommendation or a Change in Parent Recommendation, as applicable, and such Fiduciary Notice shall have specified the reasons for the Change in Company Recommendation or a Change in Parent Recommendation, as applicable;
(ii) during the period that commences on the date of delivery of the Fiduciary Notice as determined in accordance with Section 9.2 and ends at 11:59 p.m. Central time on the date that is the fifth Business Day following the date of such delivery (the “Fiduciary Notice Period”), such No-Shop Party shall, and shall cause its Representatives to, negotiate with the Other Party and its Representatives in good faith (to the extent the Other Party desires to negotiate) to make such adjustments to the terms and conditions of this Agreement as would permit the Board of such No-Shop Party not to make a Change in Company Recommendation or Change in Parent Recommendation, as applicable; and
(iii) the Board of such No-Shop Party shall have considered all revisions to the terms of this Agreement irrevocably offered in writing by the Other Party and, at the end of the Fiduciary Notice Period, shall have determined in good faith that a Change in Company Recommendation or a Change in Parent Recommendation, as applicable, would nevertheless continue to be necessary in order to comply with the fiduciary duties of its directors under applicable Law even if such revisions were to be given effect.
(f) Nothing contained in this Section 6.11 or elsewhere in this Agreement shall prohibit a No-Shop Party from taking and disclosing to the stockholders of such No-Shop Party a position required by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any “stop, look and listen” communication or any other similar disclosure to the stockholders of such No-Shop Party pursuant to Rule 14d-9(f) under the Exchange Act; provided, however, that such disclosure that addresses or relates to the approval, recommendation or declaration of the advisability by the Board of such No-Shop Party with respect to this Agreement or an Acquisition Proposal shall be deemed a Change in Company Recommendation or a Change in Parent Recommendation, as applicable, unless the Company Board or the Parent Board, as applicable, in connection with such communication publicly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the Company Board or the Parent Board, as applicable.
(g) Each No-Shop Party and its Subsidiaries shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than the Other Party) conducted heretofore with respect to any of the foregoing, it and shall use reasonable best efforts to cause all Persons (other than the Other Party) who have been furnished confidential information regarding such No-Shop Party in connection with the solicitation of or discussions regarding an Acquisition Proposal within the 12 months prior to the date of this Agreement promptly to return or destroy such information. Except to the extent the Board of a No-Shop Party has concluded in good faith (after consultation with its financial advisors and outside legal counsel) that that such action is agreed necessary in order to comply with the fiduciary duties of its directors under applicable Law, each No-Shop Party agrees not to, and to cause its Subsidiaries not to, release any Third Party from the confidentiality and standstill provisions of any agreement to which such No-Shop Party or its Subsidiaries is or may become a party, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any Person to make an Acquisition Proposal.
(h) Each No-Shop Party shall ensure that all Representatives of such No-Shop Party and its Subsidiaries are aware of the restrictions described in this Section 6.11 as reasonably necessary to avoid violations thereof. Notwithstanding anything to the contrary in this Section 6.11, any violation of the restrictions set forth in this Section 6.3(a) 6.11 by any Representative of a No-Shop Party or any of its Subsidiaries at the Acquired Companies, whether direction or not with the consent of such Person is purporting to act on behalf of No-Shop Party or any of the Acquired Companies or otherwise, its Subsidiaries shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent6.11.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
No Solicitation. (a) During From the Pre-Closing Perioddate hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 5.8, the Company shall will not, directly nor will it permit any Company Subsidiary to, nor will it authorize or indirectlypermit any officer, and shall cause the other Acquired Companies, its Representatives and the Representatives director or employee of the Company or any Company Subsidiary and each investment banker, attorney, accountant or other Acquired Companies not advisor or representative of, the Company or any Company Subsidiary to, directly or indirectly, (i) solicit, initiate, encourage, induce initiate or facilitate any inquiries regarding, or encourage the making, submission, reaffirmation or announcement submission of any Acquisition Proposal (as hereinafter defined) or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofregarding, or otherwise cooperate furnish to any person any information with respect to, or take any Acquisition Proposalother action to facilitate, (iv) approve, endorse or recommend any an Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle inquiries or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative making of any of the Acquired Companiesproposal that constitutes, whether or not such Person is purporting may reasonably be expected to act on behalf of any of the Acquired Companies or otherwiselead to, shall be deemed an Acquisition Proposal; PROVIDED, HOWEVER, that subject to be a breach of this Section 6.3(a) compliance by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations provisions of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a5.8(b), the Company shall provide to Parent any nonpublic information concerning any Company's Board of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives Directors may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the Company's Board of Directors, after consultation with its outside legal counsel, determines in good faith that such Person. The action is legally advisable for the Company's Board of Directors to comply with its fiduciary duties to the Company's stockholders under applicable Law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Company's Board of Directors after consultation with a nationally recognized financial advisor, reasonably capable of being financed, (C) the Company's Board of Directors determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant including after consultation with a nationally recognized financial advisor, would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (D) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality agreement in reasonably customary form.
(b) Prior to providing any information to or entering into discussions with any person in connection with an Acquisition Proposal by a person as set forth in Section 5.8(a), the Company shall keep notify Parent reasonably informed orally and in writing of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) or any inquiries indicating that any person is considering making or wishes to make an Acquisition Proposal, as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a prompt basis as to of (x) the status of any discussions or negotiations with any such third party, and any material developments regarding any changes to the terms and conditions of such Acquisition Proposal, indicationand shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent and (y) any request by any person for nonpublic information relating to its or any Company Subsidiaries' properties, inquiry books or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parentrecords.
(c) Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of Section 5.8(a) of the obligations undertaken in this Section 5.8.
(d) The Company's Board and the Special Committee may of Directors will not (i) withdrawwithdraw or modify, qualify or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement or the Buyer PartiesMerger except in connection with a Superior Proposal; PROVIDED, THAT, neither the Company nor the Board of Directors of the Company may in such instance terminate this Agreement but instead the Company, at the option of and as directed by the Parent (in addition to the rights of Parent as set forth in Section 7.1(d)), shall, notwithstanding such withdrawal or fail modification of the recommendation or approval of this Agreement or the Merger by the Company's Board of Directors and/or the recommendation by the Company's Board of Directors that the Company's stockholders reject this Agreement or the Merger at the Company Stockholder Meeting, submit approval of this Agreement and the Merger as promptly as practicable to makea vote of the holders of Company Shares at the Company Stockholders Meeting as contemplated by this Agreement, it being understood and agreed that, Parent, Company and Merger Sub elect that this Agreement to be governed by the second sentence of Section 251(c) of the GCL. If the Parent exercises its option under this Section 5.8(d) to require the Company to submit this Agreement to its stockholders for approval, the Parent shall no longer be entitled to terminate this Agreement under Section 7.1(d) hereof; PROVIDED, that the foregoing shall not limit the Parent's right to (i) terminate this Agreement under Section 7.1(e)(i) if notwithstanding the exercise of the option by the Parent to require the Company Board Recommendationto submit this Agreement to the Company's stockholders for approval, this Agreement and the Merger fails to obtain the Requisite Company Vote at the Company's Stockholders Meeting and (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit receive the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have amounts that are otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the payable upon a termination of this Agreement pursuant to Article XI, Section 7.1(e)(i) as provided in Section 7.5(b).
(e) Nothing contained in this Section 5.8 shall prohibit the Company Board from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or its Special Committee may take one or more from making any disclosure to the Company's stockholders if, in the good faith reasonable judgment of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Company's Board or its Special Committee concludes in good faithof Directors, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action so disclose would be inconsistent with the fiduciary its obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedureslaw.
(df) Until the earlier of the Merger Effective Time and the termination For purposes of this Agreement pursuant to Article XIAgreement, the Company shall immediately (i) cease and cause to be terminated any existing solicitation"ACQUISITION PROPOSAL" means an inquiry, discussion, negotiation offer or other action conducted by proposal regarding any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party following (other than the Buyer Parties Transactions contemplated by this Agreement) involving the Company or any Company Subsidiary: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of the Company and their respective Representatives)the Company Subsidiaries, taken as a whole, in each case, subject a single transaction or series of related transactions; (iii) any tender offer or exchange offer for fifteen percent (15%) or more of the outstanding shares of Company Common Stock or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal or plan to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which do any of the Acquired Companies is a party, and will use its reasonable best efforts foregoing or any agreement to enforce or cause to be enforced each such agreement at engage in any of the request of Parentforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Metromedia Fiber Network Inc), Merger Agreement (Metromedia Fiber Network Inc)
No Solicitation. (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and the Company shall cause the other Acquired Companies, not permit its Representatives Subsidiaries and the respective Representatives of the other Acquired Companies not Alamo Corporations to, directly or indirectly, :
(i) solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead with respect to an Alamo Corporation or Acquisition Proposal, Inquiry with respect to an Alamo Corporation;
(ii) knowingly furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Alamo Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead with respect to an Alamo Corporation or Acquisition Proposal, Inquiry with respect to an Alamo Corporation;
(iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate relating to any Acquisition Proposal with respect to, any to an Alamo Corporation or Acquisition Proposal, Inquiry with respect to an Alamo Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to an Alamo Corporation or Acquisition Inquiry with respect to an Alamo Corporation; or
(v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionTransaction or Acquisition Inquiry with respect to an Alamo Corporation. Without limiting the foregoingprovided, it is agreed however, that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)4.4(a) shall, subject to Section 6.3(b), shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Companies Alamo Corporations to, or entering into or conducting discussions or and negotiations with, any Person in response to a bona fide written an Acquisition Proposal that is reasonably expected to result in a Company Superior Offer that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if if: (A) neither the Company nor such Acquisition Proposal did not result from any Representative of breach of, or any action inconsistent with, any of the Acquired Companies shall have breached or violated provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal, 4.4; (B) the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s or the Special Committee’s its outside legal counsel, that failure to take such action would be inconsistent with reasonably constitute a breach of the fiduciary obligations duties of the Company Board to the Company’s shareholders 's stockholders under applicable Legal Requirements, law; (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) at least two business days prior to furnishing any such nonpublic information to to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement (which the Company may discuss with such Person during the two day period) containing customary limitations on provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to the use Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include "standstill" provisions); and disclosure of all nonpublic written and oral (D) at least two business days prior to furnishing any such information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a)Person, the Company shall provide furnishes such information to Parent any nonpublic (to the extent such information concerning any of has not been previously furnished or Made Available by the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided Company to Parent). Parent and the Company agree that any action inconsistent with the restrictions set forth in this Section 4.4 by any Alamo Corporation or by any Representative of an Alamo Corporation will be deemed to be a breach of this Section 4.4 by the Company.
(b) From and after During the execution of this AgreementPre-Closing Period, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties Parent shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receiptnot, directly or indirectly, and Parent shall cause its Subsidiaries and the respective Representatives of the Abeline Corporations not to, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any such inquiries, Acquisition Proposal with respect to an Abeline Corporation or Acquisition Inquiry with respect to an Abeline Corporation;
(ii) knowingly furnish any information regarding any of the Abeline Corporations to any Person in connection with or in response to an Acquisition Proposal with respect to an Abeline Corporation or Acquisition Inquiry with respect to an Abeline Corporation;
(iii) engage in discussions or negotiations or proposals with any Person relating to any Acquisition Proposal with respect to an Abeline Corporation or Acquisition Inquiry with respect to an Abeline Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to an Abeline Corporation or Acquisition Inquiry with respect to an Abeline Corporation; or
(v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction or Acquisition Inquiry with respect to an Abeline Corporation. provided, however, that prior to the approval of the issuance of shares of Parent Common Stock in the Merger by the CompanyRequired Parent Stockholder Vote, this Section 4.4(b) shall not prohibit Parent from furnishing information regarding the Abeline Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Company Superior Offer that is submitted to Parent by such Person (iiand not withdrawn): (A) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information todid not result from any breach of, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by inconsistent with, any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and provisions set forth in this Section 4.4; (B) the termination of this Agreement pursuant to Article XI, the Company Parent Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s (or the Special Committee’s, as applicable) its outside legal counsel, that failure to take such action would be reasonably constitute a breach of the fiduciary duties of the Parent Board to Parent's stockholders under applicable law; (C) at least two business days prior to furnishing any such information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent's intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement (which the Parent may discuss with such Person during the two day period) containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include "standstill" provisions); and (D) at least two business days prior to furnishing any such information to such Person, Parent furnishes such information to the Company (to the extent such information has not been previously furnished or Made Available by Parent to the Company). The Company and Parent agree that any action inconsistent with the fiduciary obligations restrictions set forth in this Section 4.4 by any Abeline Corporation or by any Representative of an Abeline Corporation will be deemed to be a breach of this Section 4.4 by Parent.
(c) Each of Parent and the Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal with respect to an Alamo Corporation or an Abeline Corporation, as the case may be, or Acquisition Inquiry with respect to an Alamo Corporation or an Abeline Corporation, as the case may be) advise the other party to this Agreement orally and in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Company Board to Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the Company’s shareholders under applicable Legal Requirementsterms thereof, but only after following including a copy of any written Acquisition Proposal or Acquisition Inquiry) that is made or submitted by any Person during the Superior Pre-Closing Period. Each party receiving an Acquisition Proposal Termination Proceduresor Acquisition Inquiry shall keep the other party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry, including any negotiations with respect thereto; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Until the earlier Each of the Merger Effective Time Parent and the termination of this Agreement pursuant to Article XICompany shall, the Company and shall cause their respective Subsidiaries and Representatives to, immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions conducted on or other action conducted by before the date of this Agreement with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)or Acquisition Inquiry.
(e) The Each of Parent and the Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “non-solicitation, no hire, "standstill” " or similar agreement Contract to which any such party or any of the Acquired Companies its Subsidiaries is a partyparty or under which any such party or any of its Subsidiaries has any rights, and will use its reasonable best efforts to enforce or cause each such agreement to be enforced each such agreement at the request of Parentthe other party to this Agreement, except that each of Parent and the Company may waive any "standstill" or similar contract to which any such party or any subsidiary is a party if the party's board of directors concludes in good faith, after having consulted with outside counsel, that the failure to take such action would reasonably constitute a breach of any fiduciary duties of the party's board of directors.
Appears in 2 contracts
Sources: Merger Agreement (Allos Therapeutics Inc), Merger Agreement (Amag Pharmaceuticals Inc.)
No Solicitation. (a) During From and after the Pre-Closing Perioddate of this Agreement, and except as expressly permitted by Section 1.2(c) or Section 6.4(b), the Company shall not, directly or indirectly, and the Company shall cause the other Acquired Companies, any of its Representatives and the Representatives of the other Acquired Companies Subsidiaries not to, directly or indirectlyand the Company shall instruct its Representatives acting on its behalf not to, (i) solicit, initiate, encourage, induce initiate or knowingly facilitate or knowingly encourage any inquiries or indications of interest regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal proposal or take any action offer that could constitutes, or that would reasonably be expected to lead to an Acquisition to, a Takeover Proposal, ; (ii) furnish enter into or participate in any nonpublic information regarding discussions (other than to state that the Company is not permitted to have discussions) with any of the Acquired CompaniesPerson that has made (A) a Takeover Proposal, with respect to such Takeover Proposal, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or (B) an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition a Takeover Proposal, with respect to such Takeover Proposal; (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal Takeover Proposal; or (viv) enter into any letter of intent, arrangementterm sheet, understanding, merger agreement, acquisition agreement, option agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Takeover Transaction. Without limiting .
(b) Notwithstanding Section 6.4(a), until the foregoingOffer Acceptance Time and following the receipt by the Company of a bona fide written Takeover Proposal, it is agreed so long as the Company shall not have breached this Section 6.4 in connection with such Takeover Proposal, (i) the Company Board shall be permitted to participate in discussions regarding such Takeover Proposal solely to clarify the terms of such Takeover Proposal and to enter into an Acceptable Confidentiality Agreement with the party making such Takeover Proposal and (ii) if the Company Board determines in good faith (A) that any violation of such Takeover Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (B) after consultation with outside legal counsel, that the restrictions failure to take the actions set forth in this Section 6.3(aclauses (x) by any Representative of any of the Acquired Companiesor (y) below with respect to such Takeover Proposal would be inconsistent with its fiduciary duties under applicable Law, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(aand (C) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic any access or non-public information regarding the Acquired Companies to, or entering into discussions with the Person who has made such Takeover Proposal, Parent receives written notice from the Company of the identity of such Person and of the Company’s intention to furnish access or conducting non-public information to, or enter into discussions or negotiations with, any Person such Person, then the Company may, in response to a bona fide written Acquisition Proposal that is submitted such Takeover Proposal, (x) furnish access and non-public information with respect to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of its Subsidiaries to the Acquired Companies shall have breached Person who has made such Takeover Proposal pursuant to an Acceptable Confidentiality Agreement, so long as any written material non-public information provided under this clause (x) has previously been made available to Parent or violated is made available to Parent substantially concurrently with the time it is made available to such Person, and (y) participate in discussions and negotiations regarding such Takeover Proposal. Notwithstanding anything to the contrary in this Section 6.3(a) in any respect that results in such Acquisition ProposalAgreement, (B) the Company Board or its Special Committee concludes shall be permitted, to the extent it determines in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the its fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal RequirementsLaw, (C) the Company Board to modify, waive, amend or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely affirmatively release any existing standstill obligations owed by any Person to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “its Subsidiaries; provided, however, that concurrently with the waiver, amendment or release of any standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide similarly waive, amend or release Parent’s standstill obligation. Without limiting the foregoing, the Company and its Representatives shall be permitted, at any time prior to Parent the Offer Acceptance Time, and without the requirement of having first received an unsolicited Takeover Proposal, to waive any nonpublic information concerning standstill obligation owed by any Person to the Company to the extent necessary to allow such Person to make a Takeover Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of or the taking of any action inconsistent with any of the Acquired Companies that is furnished restrictions set forth in the Section 6.4 by the Company or any Representative of the Company acting on its behalf, shall be deemed to any third Person or its Representatives which was not previously provided to Parentconstitute a breach of this Section 6.4 by the Company.
(bc) From and after the execution date of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, promptly (and in any no event within fortylater than twenty-eight four (4824) hours following the initial after receipt by any Acquired Company of any Acquisition Takeover Proposal, any written indication by of interest that could reasonably be expected to lead to a Takeover Proposal or any Person considering making an Acquisition Proposal, any written request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposalnon-public information) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receiptsuch Takeover Proposal, directly such written indication of interest that could reasonably be expected to lead to a Takeover Proposal or indirectly, of any such inquiries, negotiations or proposals written request for non-public information relating to any Acquisition Proposal by the Company, including (iiA) the identity of the Person making or submitting such Takeover Proposal, inquiry, indication of interest or request and (B) the material terms and conditions of such Acquisition Takeover Proposal and such other facts included in such Takeover Proposal as would be material to an evaluation of such Takeover Proposal. After receipt of the Takeover Proposal, indicationwritten inquiry, inquiry written indication of interest or written request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding of the status and terms of any such Acquisition Takeover Proposal, indicationinquiry, inquiry indication of interest or request. None request (including notice of all material amendments or proposed material amendments thereto) and provide to Parent the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing material terms and conditions and such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse other facts subsequently provided to the Buyer Parties, Company or fail its Representatives as would be material to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition evaluation of such Takeover Proposal, (iii) authorize written inquiry, written indication of interest or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedureswritten request.
(d) Until the earlier As of the Merger Effective Time and the termination date of this Agreement pursuant to Article XIAgreement, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by discussions with any of the Acquired Companies Person that relate to any Takeover Proposal or any inquiry or indication of their respective interest that could lead to an Takeover Proposal and shall immediately close and permit no further access to its electronic data room (but shall permit Parent continued access). The Company shall promptly (but in no event later than five (5) Business Days following the execution of this Agreement) demand that each Person that has heretofore executed a confidentiality agreement with the Company or its Representatives with respect to any Acquisition such Person’s consideration of a possible Takeover Proposal effective as of the date hereof, (iiother than agreements that have expired by their terms) request that to immediately return or destroy all confidential information previously heretofore furnished by the Company or any of its Representatives to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than Person in accordance with the Buyer Parties and their respective Representatives), in each case, subject to terms of such Person’s confidentiality agreement with the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, directly nor shall it authorize or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not permit any Company Subsidiary to, directly nor shall it authorize or indirectlypermit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, "Representatives") of, the Company or any Company Subsidiary to, (i) solicit, initiate, encourage, induce initiate or facilitate any inquiries regarding, or encourage the making, submission, reaffirmation or announcement submission of any Acquisition Proposal Company Takeover Proposal, or take any action designed to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) enter into, participate in or continue any discussions or negotiations regarding, or furnish to any Person any information with respect to, any Company Takeover Proposal; provided, however, that prior to the receipt of the Company Stockholder Approval, the Company and its Representatives may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by it after consultation with outside counsel, in response to a Company Takeover Proposal, that is made by a Person the Company Board determines, in good faith, is reasonably likely to result in a transaction meeting the requirements of a "Superior Company Proposal" that was not solicited by the Company and that did not otherwise result from a breach or a deemed breach of this Section 5.02(a), and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the Person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement and (y) participate in discussions or negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal.
(b) Neither the Company Board nor any committee thereof shall (i) withdraw or propose publicly to withdraw the approval or recommendation by the Company Board or any such committee of this Agreement or the Merger, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or (iii) approve or recommend, or propose publicly to approve or recommend, any Company Takeover Proposal. Notwithstanding the foregoing, if, prior to the receipt of the Company Stockholder Approval, the Company Board receives a Superior Company Proposal and as a result thereof the Company Board determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary obligations, the Company Board may withdraw or modify its approval or recommendation of the Merger and this Agreement and, in connection therewith, approve or recommend such Superior Company Proposal.
(c) The Company promptly shall advise Purchaser orally and in writing if it shall receive any Company Takeover Proposal or any inquiry with respect to or that could reasonably be expected to lead to an Acquisition any Company Takeover Proposal, (ii) furnish any nonpublic information regarding any . The Company shall keep Purchaser informed of the Acquired Companies, or provide any access to the books, records or personnel status of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition such Company Takeover Proposal or an inquiry or indication of interest that could reasonably inquiry. The Company shall not be expected required to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations comply with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a5.02(c) in any respect instance to the extent that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure such compliance would in such instance breach or violate their fiduciary duties.
(d) Nothing contained in this Section 5.02 shall prohibit the Company from taking and disclosing to take such action would be inconsistent with its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the fiduciary obligations Exchange Act or from making any disclosure to the Company's stockholders if, in the good faith judgment of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faithBoard, after consultation with outside counsel, failure so to disclose would breach or violate its legal counsel and an independent financial advisor of nationally recognized reputationobligations under applicable Law; provided, however, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company in no event shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one any committee thereof take, agree or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure resolve to take such any action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted prohibited by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a5.02(b).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (MCK Communications Inc), Merger Agreement (Verso Technologies Inc)
No Solicitation. (a) During Prior to the Pre-Closing PeriodExpiration Date, each Stockholder (in its capacity as a stockholder of the Company Company) shall not, directly or indirectlyshall cause each of its controlled Affiliates not to, and shall use reasonable best efforts to cause the other Acquired Companieseach person that controls such Stockholder (each, its Representatives and the Representatives of the other Acquired Companies a “Representative”) not to, directly or indirectly, (i) solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal proposal or take any action offer that constitutes, or could reasonably be expected to lead to an Acquisition to, a Company Takeover Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofthat could reasonably be expected to lead to, or otherwise cooperate furnish to any other person any information in connection with respect toor for the purpose of encouraging or facilitating, any Acquisition Proposala Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 2.1 and/or Section 5.3 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral), or (iviii) approve, endorse recommend or enter into, or propose to approve, recommend any Acquisition Proposal or (v) enter into into, any letter of intent, arrangement, understandingintent or similar document, agreement, commitment, or agreement in principle (whether written or similar document oral, binding or nonbinding) with respect to a Company Takeover Proposal; provided that nothing herein shall prohibit any Stockholder or any Contract contemplating of its controlled Affiliates or otherwise relating Representatives from participating in any discussions or negotiations with respect to any Acquisition Transaction. Without limiting a possible stockholders’ consent or voting agreement in connection with a Company Takeover Proposal in the foregoing, it is agreed event that any violation of the restrictions Company becomes permitted to taken the actions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if clause (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, clause (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of Section 5.3(c) of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation Merger Agreement with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information respect to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentTakeover Proposal.
(b) From and after the execution For purposes of this Agreement, except the term “Affiliate” shall have the meaning assigned to it in the extent that doing so would result Merger Agreement, but shall not include any entity whose equity securities are registered under the Exchange Act (or are publicly traded in a breach of its fiduciary dutiesforeign jurisdiction), each solely by reason of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company fact that one or more nominees or representatives of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course Stockholders serves as a member of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any its board of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” directors or similar ownership limitation provisions (including governing body, unless the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and Stockholders or their respective Affiliates) or any action taken by any Affiliates otherwise control such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefromentity. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination For purposes of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XIAgreement, the Company shall immediately (i) cease and cause not be deemed to be terminated any existing solicitation, discussion, negotiation or other action conducted by an Affiliate of any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Stockholders.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Voting and Support Agreement (Dollar Tree Inc), Voting and Support Agreement (Trian Fund Management, L.P.)
No Solicitation. (a) During From the Pre-date of this Agreement until the Closing PeriodDate, the Company shall agrees that it will not, directly or indirectlyindirectly through any officer, and shall cause the Subsidiary, Affiliate, director, employee, stockholder, representative, agent or other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectlyperson, (i) solicitseek, initiate, encourage, induce solicit or facilitate encourage any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected Person to lead to make an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, engage in negotiations or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to discussions concerning an Acquisition Proposal with any person or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposalgroup, (iii) engage indisclose any non-public information relating to the Company or give access to the properties, continue employees, books or otherwise participate records of the Company or any of its subsidiaries to any person or group in any discussions or negotiations connection with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (viv) enter into approve or recommend or agree to approve or recommend any letter Acquisition Proposal; provided that nothing herein shall prevent the Board of intent, arrangement, understanding, agreement, agreement in principle Directors or similar document or any Contract contemplating or otherwise relating a committee thereof from (A) furnishing information to any person that has made an Acquisition Transaction. Without limiting the foregoing, it is agreed that any Proposal not solicited in violation of this paragraph or (B) subject to the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach other provisions of this Section 6.3(a) by the Company. Notwithstanding the foregoingparagraph, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting participating in discussions or negotiations with, any Person in response to a bona fide written concerning an Acquisition Proposal not solicited in violation of this paragraph so long as, in any case, (x) the Board of Directors or such committee shall have concluded in good faith (after receiving and considering the advice of its outside legal counsel) that is submitted failing to participate in such discussions or negotiations or furnishing such information would cause the Board of Directors or such committee to be in breach of its fiduciary duties to the Company by Shareholders under applicable law, and (y) prior to participating in such Person during discussions or negotiations or furnishing any such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither information, the Company nor any Representative of any and the party making such offer agrees to a confidentiality agreement on terms that are, in the aggregate, no less favorable to the Company than those of the Acquired Companies Confidentiality Agreement (other than the standstill provisions thereof) and the New Investor is given concurrent or advance written no- tice ▇▇▇reof unless the Board of Directors or such committee shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes concluded in good faith, after consultation with receiving and considering the Company’s or the Special Committee’s advice of its outside legal counsel, that failure doing so would cause it to be in breach of its fiduciary responsibilities to the Company Shareholders under applicable law. The Board of Directors or such committee may (x) fail to make, withdraw or modify in a manner adverse to the New Investor its recommendation to its stockholders referred to in Section 5.03, (y) take and disclose to the Company Shareholders a position contemplated by Rule 14e-2 under the 1934 Act or otherwise complying with its disclosure obligations and/or (z) take any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in the case of clause (x) or (y) only if the Board of Directors or such committee determines, in good faith after consultation with outside legal counsel to the Company, that such action would be inconsistent is consistent with the exercise of its fiduciary obligations duties under applicable law.
(b) The Company shall notify the New Investor in writing no later than the end of the next business day after receipt thereof of the receipt of any Acquisition Proposal (including a copy thereof if in writing), the terms and conditions of such Acquisition Proposal and the identity of the person making it. The Company also shall promptly notify the New Investor no later than the end of the next Business Day of any change to or modification of such Acquisition Proposal.
(c) The Company shall, and shall cause its Subsidiaries and the advisors, employees and other agents of the Company Board and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the Company’s shareholders under applicable Legal Requirements, date hereof with respect to any Acquisition Proposal and shall use commercially reasonable efforts to cause any such Party (Cor its agents or advisors) in possession of confidential information about the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information was furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person return or its Representatives which was not previously provided to Parentdestroy all such information.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Share Purchase Agreement (Cypress Capital Advisors LLC), Share Purchase Agreement (Collins & Aikman Corp)
No Solicitation. (a) During Upon the Preearlier to occur of the approval of this Agreement or the Icahn DIP Facility, the U.S. Debtors agree to withdraw their motion to sell assets of the U.S. Debtors under Section 363 of the U.S. Bankruptcy Code, and further agree not to refile any such motion except as permitted by the Icahn DIP Facility and not to file any similar motion with respect to the Canadian Subsidiaries in the Canadian Court except as permitted by this Agreement and the Icahn DIP Facility. Nothing in this Section 4.12(a) shall preclude the Company from soliciting or proposing Competing Offers prior to the Determination Date, as may otherwise be permitted hereunder.
(b) Prior to the Determination Date the Company shall not take any efforts in connection with developing a competing plan of reorganization or soliciting a Superior Proposal, except in accordance with the terms of this Agreement, including, without limitation, Section 4.9, Exhibit A-2, and the Bidding Procedures Order.
(c) After the Determination Date, the Company shall advise Purchaser of any request for information with respect to any Acquisition Proposal or of any Acquisition Proposal, or any inquiry, proposal, discussions or negotiation with respect to any Acquisition Proposal, the terms and conditions of such request, Acquisition Proposal, inquiry, proposal, discussion or negotiation and the Company shall, within one (1) calendar day of the receipt thereof, promptly provide to Purchaser copies of any written materials received by the Company or any of its Subsidiaries in connection with any of the foregoing, and the identity of the Person making any such Acquisition Proposal or such request, inquiry or proposal or with whom any discussions or negotiations are taking place. The Company shall keep Purchaser fully informed of the status and material details (including amendments or proposed amendments) of any such request or Acquisition Proposal and keep Purchaser fully informed as to the material details of any information requested of or provided by the Company and as to the details of all discussions or negotiations with respect to any such request, Acquisition Proposal, inquiry or proposal, and shall provide to Purchaser within one (1) calendar day of receipt thereof all written materials received by the Company with respect thereto. The Company shall promptly provide to Purchaser any non-public information concerning the Company provided to any other Person in connection with any Acquisition Proposal, which was not previously provided to Purchaser.
(d) Notwithstanding anything herein to the contrary, if, on the Determination Date, the Company and the other U.S. Debtors select this Agreement from among any or all Competing Offers, then beginning on the Determination Date, and until the earlier of (i) the Closing PeriodDate or (ii) termination of this Agreement in accordance with its terms, the Company shall not, directly or indirectlywithout the prior written consent of the Purchaser, and shall cause not permit any of its Subsidiaries, nor any of its or their officers, directors, shareholders, employees, investment bankers, attorneys, or any other representative to, and none of them shall, without the other Acquired Companies, its Representatives and the Representatives prior written consent of the other Acquired Companies not toPurchaser, directly or indirectly, (iA) solicit, initiateengage in discussions or negotiate with any Person (whether or not such discussions or negotiations are initiated by the Company), encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action that could reasonably be expected intended or designed to lead facilitate the efforts of any Person, other than Purchaser or its Affiliates, relating to an Acquisition Proposal, (iiB) furnish any nonpublic provide information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition ProposalPerson, (B) the Company Board other than Purchaser or its Special Committee concludes in good faithAffiliates, after consultation with the Company’s relating to a possible Acquisition Proposal by any Person, other than Purchaser or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirementsits Affiliates, (C) the Company Board enter into an agreement with any Person, other than Purchaser or its Special Committee concludes in good faithAffiliates, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputationproviding for a possible Acquisition Proposal, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and or (D) prior to furnishing make or authorize any such nonpublic information to such Personstatement, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by recommendation or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result solicitation in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company support of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any possible Acquisition Proposal by the Companyany Person, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board Purchaser or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresAffiliates.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Investment Agreement (Icahn Carl C Et Al), Investment Agreement (Philip Services Corp/De)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, directly nor shall it permit any of its Subsidiaries to, or indirectlyauthorize or permit any director, and shall cause the other Acquired Companies, its Representatives and the Representatives officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other Acquired Companies not advisor or representative of the Company or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate, initiate or encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action knowingly to facilitate, any Takeover Proposal or any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to an Acquisition a Takeover Proposal, or (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage inenter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with any Person in respect ofto, or otherwise cooperate in any way with, any Takeover Proposal; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors reasonably determines in good faith by resolution duly adopted constitutes a Superior Proposal, and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Agreement (including this Section 5.02), and subject to compliance with Sections 5.02(b) and 5.02(c), (A) furnish information with respect toto the Company and its Subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement having terms that are at least as favorable to the Company as the terms contained in the Confidentiality Agreement, any Acquisition provided that all such information is provided on a prior basis to Parent, and (B) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal, (iv) approvebut in each case only to the extent the Board of Directors of the Company determines in good faith, endorse or recommend any Acquisition Proposal or (v) enter into any letter after consultation with outside counsel, by resolution duly adopted, that the failure to take such action would constitute a breach of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transactionthe fiduciary duties of the Board of Directors of the Company under Applicable Law. Without limiting the foregoing, it is agreed understood that any violation of the restrictions set forth in this Section 6.3(a5.02(a) by any Representative director, officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Acquired Companies, whether Company or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, its Subsidiaries shall be deemed to be a breach of this Section 6.3(a5.02(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (L 3 Communications Corp), Merger Agreement (Westwood Corp/Nv/)
No Solicitation. (a) During From and after May 9, 1999 until the Pre-Closing Periodearlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Company Xoom shall not, directly nor shall it permit any of its Subsidiaries to, nor shall it authorize or indirectlypermit any officer, and shall cause the director or employee of, or any investment banker, attorney or other Acquired Companiesadvisor or representative of, Xoom or any of its Representatives and the Representatives of the other Acquired Companies not Subsidiaries to, directly or indirectly, (i) take any action to solicit, initiate, encourage, induce encourage or knowingly facilitate any inquiries regarding, Material Transaction Proposal (as defined below) or the making, submission, reaffirmation or announcement submission of any Acquisition a Material Transaction Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, enter into or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofregarding, or otherwise cooperate furnish to any person any information with respect to, any Acquisition a Material Transaction Proposal; PROVIDED that, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating prior to any Acquisition Transaction. Without limiting obtaining the foregoing, it is agreed that any violation affirmative vote of the restrictions set forth in this Section 6.3(a) by any Representative holders of any a majority of the Acquired Companies, whether or not such Person is purporting outstanding shares of common stock of Xoom to act on behalf of any of adopt the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Xenon 2 Merger Agreement (including this Section 6.3(a)) shallthe "XOOM STOCKHOLDER APPROVAL" and, subject to Section 6.3(btogether with the Xenon 2 Stockholder Approval, the "STOCKHOLDER APPROVALS"), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted an unsolicited BONA FIDE Takeover Proposal, Xoom may, to the Company by extent that the Board of Directors of Xoom determines in good faith based on the advice of outside legal counsel that such Person during such period (and not withdrawn) which action is reasonably likely required to result in a Superior Proposal if comply with their fiduciary duties under applicable law, (A) neither furnish information with respect to Xoom and its Subsidiaries to the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in person making such Acquisition Proposal, Takeover Proposal and its representatives and discuss such information with such person and its representatives and (B) participate in negotiations regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any request for information or any Material Transaction Proposal, the Company Board material terms and conditions of such request or its Special Committee concludes in good faith, after consultation with Material Transaction Proposal and the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations identity of the Company Board to person making any such request or Material Transaction Proposal, and will keep NBC fully informed on a current basis of the Company’s shareholders under applicable Legal Requirementsstatus and details of any such request or Material Transaction Proposal, (C) the Company Board or its Special Committee concludes in good faithPROVIDED that, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing providing any such nonpublic information to such any Person or participating in negotiations with any Person, the Company receives from such Person Xoom shall have received an executed confidentiality agreement containing customary limitations on the use agreement. Xoom will immediately cease and disclosure of all nonpublic written cause to be terminated any existing activities, discussions and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished negotiations conducted heretofore with respect to any third Person or its Representatives which was not previously provided to ParentMaterial Transaction Proposal.
(b) From and after May 9, 1999 until the execution earlier of the Effective Time or the termination of this AgreementAgreement in accordance with its terms, except to the extent that doing so would result in a breach Board of its fiduciary duties, each Directors of the Company Parties Xoom shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of not (i) the receipt, directly approve or indirectly, of recommend or propose publicly to approve or recommend any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the CompanyMaterial Transaction Proposal, (ii) the material terms and conditions cause or agree to cause Xoom or any of such Acquisition Proposalits Subsidiaries to enter into any agreement (including, indicationwithout limitation, inquiry any letter of intent or request, together with agreement in principle) related to a copy thereof (if available) Material Transaction Proposal or if not in writing, a written description thereof, (iii) prior to the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information toXoom Stockholder Approval, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify withdraw or modify, in a manner adverse to the Buyer Parties, or fail to makeNBC, the Company approval or recommendation of the Board Recommendationof Directors of Xoom for the adoption of the Xenon 2 Merger Agreement or vote in favor of Xoom, as sole stockholder of Xenon 2, adopting the NMC Merger Agreement at the Xenon 2 Stockholder Meeting. Notwithstanding the foregoing, if the Board of Directors of Xoom receives a Takeover Proposal without having violated SECTION 5.5(A) hereof, the Board of Directors of Xoom may, prior to obtaining the Xoom Stockholder Approval, to the extent it determines in good faith based on the advice of outside legal counsel that such action is required to comply with their fiduciary duties under applicable law, take any action specified in clauses (i), (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit above with respect to such Takeover Proposal, but in each case only (x) at a time that is at least five (5) business days after receipt by NBC of written notice from Xoom advising NBC that the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies Board of Directors of Xoom has resolved to take any such action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions and (including the Ownership Limitationy) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of if Xoom simultaneously therewith terminates this Agreement pursuant to Article XI, the Company Board SECTION 9.1(G) hereof. Nothing contained in this Agreement shall prohibit Xoom or its Special Committee may take board of directors from complying with Rules 14D-9 and 14e-2 under the Exchange Act with respect to any Takeover Proposal.
(c) As used herein, "MATERIAL TRANSACTION PROPOSAL" means any inquiry, proposal or offer from any Person relating to (i) the direct or indirect acquisition or purchase of 20% or more of the assets (based on the fair market value thereof) of Xoom and its Subsidiaries, taken as a whole, or of 20% or more of any class of equity securities of Xoom or any of its Subsidiaries or any tender offer or exchange offer (including by Xoom or its Subsidiaries) that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Xoom or any of its Subsidiaries, or (ii) any merger, consolidation, business combination, sale of all or substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving Xoom or any of its Subsidiaries other than the Transactions contemplated by this Agreement; PROVIDED, HOWEVER, that in no event shall any merger, consolidation, sale or similar transaction involving only Xoom and one or more of its wholly-owned subsidiaries or involving only any two or more of such wholly-owned subsidiaries be deemed to be a Material Transaction Proposal if such transaction is not entered into in violation of the actions described terms of this Agreement.. As used herein, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any Person relating to (A) any of the matters set forth in the preceding clauses clause (i) – of the definition of Material Transaction Proposal but replacing "20%" with "50%" each place "20%" is used in such definition, (ivB) in response a sale of all or substantially all of the assets of Xoom and its Subsidiaries or (C) a merger or consolidation of Xoom as a result of which the stockholders of Xoom immediately prior to a Superior Proposal if such transaction would not beneficially own immediately after such transaction 50% or more of the Company Board resulting or its Special Committee concludes in good faith, after consultation with the Company’s surviving entity (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(aparent thereof).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Contribution, Investment and Merger (General Electric Co), Agreement and Plan of Contribution, Investment and Merger (Xoom Inc)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, directly nor shall it authorize any of its Subsidiaries or indirectlyany officer, and shall cause the director, employee, accountant, counsel, financial advisor, agent or other Acquired Companies, its Representatives and the Representatives representative of the other Acquired Companies not Company or any of its Subsidiaries (collectively, the “Company Representatives”) to, directly or indirectly, indirectly (i) solicit, solicit or initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action to facilitate or encourage, whether publicly or otherwise, the submission of any inquiries, proposals or offers or any other efforts or attempts that could may reasonably be expected to lead to, any Takeover Proposal, (ii) enter into or participate in any discussions or negotiations regarding, or furnish to any Person any confidential information or data with respect to, or take any other action to knowingly facilitate the making of, or otherwise cooperate in any way with, a Takeover Proposal or any inquiry that may reasonably be expected to lead to an Acquisition Proposala Takeover Proposal or (iii) enter into any agreement in principle, (ii) furnish letter of intent, term sheet or other similar instrument with respect to any nonpublic information regarding Takeover Proposal or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or propose or agree to do any of the Acquired Companiesforegoing; provided, however, that nothing contained in this Section 4.3 or any other provision of this Agreement shall prohibit the Company or the Company Board from (A) 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 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (B) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company Board, after consultation with outside counsel, is required under applicable Laws; provided that the Company may not, except as permitted by Section 4.3(e), withdraw or modify its approval or recommendation of this Agreement or the transactions contemplated by this Agreement, including the Merger, or provide approve or recommend any access to the booksTakeover Proposal, records or personnel of enter into any of the Acquired Companies, agreement with respect to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication Takeover Proposal. Upon execution of interest that could reasonably be expected to lead to an Acquisition Proposalthis Agreement, (iii) engage inthe Company shall, continue or otherwise participate in and it shall instruct the Company Representatives to, immediately cease any discussions existing activities, discussions, solicitation, encouragement or negotiations with any Person in respect of, or otherwise cooperate parties conducted heretofore with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting Takeover Proposal and shall use its (and will cause the foregoingCompany Representatives to use their) reasonable best efforts to require the other parties thereto to promptly return or destroy in accordance with the terms of such agreement any confidential information previously furnished by the Company, it is agreed the Company’s Subsidiaries or the Company Representatives thereunder.
(b) Notwithstanding anything to the contrary in Section 4.3(a), prior to the Effective Date, if the Company has received from any Third Party a written inquiry or Takeover Proposal that any was not solicited in violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal4.3, (Bi) the Company Board may contact such Third Party or its Special Committee concludes in good faithadvisors for the purpose of clarifying such inquiry or Takeover Proposal and the material terms and conditions thereof, after consultation with the Company’s so as to determine whether such inquiry or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Takeover Proposal is reasonably likely to lead to a Superior Proposal Proposal, and (Dii) prior the Company may furnish information concerning its business or Assets to furnishing such Third Party pursuant to a customary confidentiality agreement, and may negotiate and participate in discussions and negotiations with such Third Party concerning a Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Board determines in good faith (after consultation with its financial advisors) is reasonably likely to constitute or lead to a Superior Proposal.
(c) The Company will promptly advise Parent of the existence of any proposal or inquiry received by the Company with respect to any Takeover Proposal, and the Company will promptly communicate to Parent the material terms and conditions of any such nonpublic information to such Person, the proposal or inquiry. The Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As will promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic non-public information concerning any of the Acquired Companies that is furnished Company provided to any third Person or its Representatives other Third Party which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall will keep Parent reasonably informed on a prompt basis as to any material developments regarding of the status and details of any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Takeover Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresinquiry.
(d) Until the earlier of the Merger Effective Time and the termination of As used in this Agreement pursuant to Article XIAgreement, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of following terms have the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.meanings set forth below:
Appears in 2 contracts
Sources: Merger Agreement (Chaparral Steel CO), Merger Agreement (Gerdau Ameristeel Corp)
No Solicitation. (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives Subsidiaries and the Representatives officers, --------------- directors, employees, agents, representatives and advisors of the other Acquired Companies not toCompany and its Subsidiaries (collectively, Company's "Representatives") will not, directly or indirectly, (i) take any action to solicit, initiate, encourageencourage (including by way of furnishing non-public information or furnishing any information, induce other than as required by applicable law, rules or facilitate any inquiries regardingregulations, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that in a manner which could reasonably be expected to lead assist a third party in formulating a Takeover Proposal), take any other action designed to an Acquisition Proposal, facilitate or agree to any Takeover Proposal (as defined in Section 7.3(f) hereof) or (ii) furnish subject to the next sentence, engage in negotiations with, or disclose any nonpublic information regarding relating to Company or any of the Acquired Companiesits Subsidiaries to any person that has advised Company that it may be considering making, or provide any access that has made, a Takeover Proposal, or whose efforts to formulate a Takeover Proposal would be assisted thereby; provided, nothing herein shall prohibit Company's Board of Directors -------- from taking and disclosing to Company's stockholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, if an unsolicited written Takeover Proposal shall be received by the Board of Directors of Company, then, to the booksextent the Board of Directors of Company believes in good faith (after written advice from its financial advisor) that such Takeover Proposal would, records or personnel if consummated, result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary for the Acquired CompaniesBoard of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, to any Person Company and its Representatives may furnish in connection with or therewith information to the party making such Superior Proposal and engage in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofsuch party, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or and such actions shall not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be considered a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption 4.4 or any other provisions of this Agreement Agreement; provided that in each such event Company notifies Parent of such -------- determination by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board of Directors and provides Parent with a true and complete copy of the Superior Proposal received from such third party, and provides (or its Special Committee concludes in good faithhas provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, after consultation with the Company’s or the Special Committee’s outside legal counselfurther, that failure to take Company provides such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic non-public information pursuant to this -------- ------- a non-disclosure agreement at least as restrictive on such third party as the Confidentiality Agreement (as defined in Section 6.3(a)5.4) is on Parent; provided, the -------- further, however, that Company shall provide to Parent any nonpublic information concerning not, and shall not permit any of the Acquired Companies that is furnished its ------- officers, directors, employees or other representatives to agree to or endorse any third Person Takeover Proposal or withdraw its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each recommendation of the Merger unless Company Parties shall promptly, has provided Parent at least five (5) days prior notice thereof. Company will promptly (and in any event within forty-eight (4824 hours) hours following the initial notify Parent after receipt by any Acquired Company of any Acquisition Proposal, Takeover Proposal or any indication by notice that any Person person is considering making an Acquisition Proposal, a Takeover Proposal or any request for non-public information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies Company or any of their respective Representatives its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person that has advised Company that it may receive after be considering making, or that has made, a Takeover Proposal, or whose efforts to formulate a Takeover Proposal would be assisted thereby (such notice to include the date hereofidentity of such person or persons), advise and will keep Parent orally fully informed of the status and in writing of (i) the receipt, directly or indirectly, details of any such inquiriesTakeover Proposal notice, negotiations request or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms correspondence or communications related thereto and conditions shall provide Parent with a true and complete copy of such Acquisition ProposalTakeover Proposal notice or request or correspondence or communications related thereto, indicationif it is in writing, inquiry or requesta complete written summary thereof, together with a copy thereof (if available) or if it is not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated all existing discussion or negotiations with any existing solicitation, discussion, negotiation or other action persons conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)a Takeover Proposal.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (E Trade Group Inc), Merger Agreement (E Trade Group Inc)
No Solicitation. (a) During the Pre-Closing Period, Each of Parent and the Company shall immediately cease any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal and, if applicable, shall seek to have returned to the Company or Parent as applicable any information and materials that have been provided in any such discussions or negotiations and shall immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. From and after the date hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with Article VII, each of the Company and Parent shall not, directly nor shall it permit any of its Subsidiaries to, nor shall it authorize or indirectlypermit any of its officers, and shall cause the directors or employees or any Affiliate, investment banker, financial advisor, attorney, accountant or other Acquired Companies, Representative retained by it or any of its Representatives and the Representatives of the other Acquired Companies not Subsidiaries to, directly or indirectly, (i) solicit, initiate, encourage, induce initiate or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement knowingly encourage (including by way of any Acquisition Proposal furnishing information) or take any other action that could to facilitate, any inquiry or the making of any proposal which constitutes, or may reasonably be expected to lead to an Acquisition to, any Takeover Proposal, (ii) furnish enter into any nonpublic information regarding letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to any Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into pursuant to subsection (A) of the Acquired Companies, proviso of this sentence) or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage inenter into, continue or otherwise participate in any discussions or negotiations regarding any Takeover Proposal; provided, however, that if, prior to obtaining the Company Stockholder Approval (in the case of the Company) or the Parent Stockholder Approval (in the case of Parent), following the receipt of a Superior Proposal or a Takeover Proposal that the Company Board or Parent Board, as applicable, determines in good faith is reasonably expected to lead to a Superior Proposal and that in either case was unsolicited and made after the date of this Agreement in circumstances not otherwise involving a breach of this Agreement, the Company Board or the Parent Board, as applicable, determines in good faith, after consultation with any Person in respect ofoutside legal counsel, or otherwise cooperate that a failure to take such action with respect toto such Takeover Proposal would be inconsistent with the exercise of its fiduciary duties to the Company’s stockholders or Parent’s stockholders, any Acquisition as applicable, under applicable Law, the Company or Parent, as applicable, may, in response to such Takeover Proposal, and subject to compliance with Section 5.4(c), (ivA) approvefurnish information with respect to the Company or Parent, endorse as applicable, to the party making such Takeover Proposal pursuant to a confidentiality agreement (an “Acceptable Confidentiality Agreement”) that contains confidentiality and standstill provisions not less favorable to the Company or recommend any Parent, as the case may be, than those contained in the Confidentiality Agreements; provided that (x) such confidentiality agreement shall permit the provision of all information to Parent and the Company, as applicable, that is contemplated or required by this Section 5.4 to be provided to Parent or the Company, as applicable, and (y) such confidentiality agreement shall include a standstill, except that, (i) such standstill need not prohibit the Person making such Takeover Proposal from making a Takeover Proposal to the Company Board or Parent Board, as applicable, in a confidential manner and (ii) such confidentiality agreement need not include a standstill to the extent that the Person making such Alternative Acquisition Proposal has commenced a tender offer or exchange offer incorporating an Takeover Proposal, and (vB) enter into any letter engage in discussions or negotiations with such party regarding such Takeover Proposal. In addition, notwithstanding anything in this Agreement to the contrary, following the receipt of intenta Takeover Proposal, arrangementthe Company Board or Parent Board, understandingas applicable, agreementmay contact the Person or group of Persons who has made such Takeover Proposal solely for the purpose of seeking clarification of the terms and conditions thereof and the Company or Parent, agreement in principle or similar document or any Contract contemplating or otherwise relating as applicable, shall promptly provide a summary of such clarifications to any Acquisition Transactionthe other Party. Without limiting the foregoing, it It is agreed that any violation of the restrictions set forth in this Section 6.3(a) the preceding sentence by any Representative of each of the Company or Parent, as applicable, or any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, their respective Subsidiaries shall be deemed to be a breach of this Section 6.3(a5.4(a) by the CompanyCompany or Parent, as applicable. Notwithstanding the foregoing, from the date hereof and prior Prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution termination of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together connection with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the concurrent termination of this Agreement pursuant to Article XISection 7.1(c)(iv) or Section 7.1(d)(iv), but subject to the concurrent payment of the applicable Company Termination Fee or Parent Termination Fee, as the case may be, (1) neither the Company Board nor Parent shall take any action to exempt any Person from the restrictions on “business combinations” or its Special Committee may take one any similar provision contained in any applicable Takeover Law or more the Constituent Documents of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’sParent, as applicable, otherwise cause such restrictions not to apply, and (2) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
shall not (dx) Until the earlier of the Merger Effective Time and terminate (or permit the termination of this Agreement pursuant (except in accordance with its terms and not related to Article XIa Takeover Proposal)), waive or amend the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.Rights Agreement,
Appears in 2 contracts
Sources: Merger Agreement (Health Net Inc), Merger Agreement (Centene Corp)
No Solicitation. (a) During the Pre-Closing Period, Each of Parent and the Company shall and their respective Subsidiaries will not, directly or indirectlyand will use their reasonable best efforts to cause their respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies representatives not to, directly or indirectly, (i) take any action to solicit, initiate, encourage, induce encourage or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal(including without limitation, (ii) furnish any nonpublic information regarding any in the case of the Acquired CompaniesCompany, by amending, or provide granting any access to waiver under, the books, records Company Rights Agreement) or personnel of any of the Acquired Companies, to any Person inquiry with respect thereto or engage in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any substantive discussions or negotiations with any Person in with respect ofthereto, or otherwise cooperate in connection with respect any Acquisition Proposal or potential Acquisition Proposal, disclose any nonpublic information relating to it or its Subsidiaries or afford access to the properties, books or records of it or its Subsidiaries to, any Person that has made, or to such party's knowledge, is considering making, any Acquisition Proposal; provided, however, that, in the event that (ivx) approve, endorse Parent or recommend any Acquisition the Company shall receive a Superior Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or that was not solicited by it and did not otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be result from a breach of this Section 6.3(a7.10, (y) by prior to receipt of the Parent Stockholder Approval (in the case of Parent) or the Company Stockholder Approval (in the case of the Company. Notwithstanding ), the foregoingBoard of Directors of either Parent or the Company, from as applicable, determines in its good faith judgment, after receiving the date hereof and prior to the adoption advice of outside counsel that, in light of this Agreement by Superior Proposal, if Parent or the Required Company Shareholder VoteCompany, nothing as applicable, fails to participate in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting such discussions or negotiations with, any or provide such information to, the party making the Superior Proposal, there is a reasonable possibility that such Board of Directors would be in violation of its fiduciary duties under applicable law, and (z) after giving the other party two business days' notice of its intention to do so, the party receiving such Superior Proposal may (i) furnish information with respect to it and its subsidiaries to the Person in response making such Superior Proposal pursuant to a bona fide written customary confidentiality agreement containing terms generally no less restrictive than the terms contained in the Confidentiality Agreement (but not containing any exclusivity provision and permitting the Person to submit to the Board of Directors of the Company or Parent, as applicable, Acquisition Proposal that is submitted Proposals with respect to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor or Parent, as applicable, provided that any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely subject to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on approval of the use and disclosure Board of all nonpublic written and oral information furnished to such Person by or on behalf Directors of the Company and customary “standstill” provisions. As promptly or Parent, as reasonably practicable following applicable, (which approval may be granted solely in accordance with the furnishing terms of nonpublic information pursuant to this Section 6.3(aSections 5.1(m) or 6.1(m) hereof)), the Company shall provide to Parent any nonpublic provided that a copy of all such written information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously simultaneously provided to Parentthe other party hereto and (ii) participate in discussions and negotiations regarding such Superior Proposal.
(b) From and after Nothing contained in this Agreement shall prevent the execution Board of this Agreement, Directors of Parent or the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of that party shall not recommend that the stockholders of that party tender their shares in connection with a tender offer except to the extent extent, after receiving a Superior Proposal, the Board of Directors of that doing so party determines in its good faith judgment, after receiving the advice of outside legal counsel, that, in light of the Superior Proposal, there is a reasonable possibility that the Board of Directors would result be in a breach violation of its fiduciary duties, each of the Company Parties shall promptly, duties under applicable law if it fails to make such a recommendation.
(c) Any party receiving an Acquisition Proposal will (A) promptly (and in no event later than 48 hours after receipt of any event within forty-eight Acquisition Proposal) notify (48which notice shall be provided orally and in writing and shall identify the Person making the Acquisition Proposal and set forth the material terms thereof) hours following the initial other party to this Agreement after receipt by any Acquired Company of any Acquisition Proposal, or any indication request for nonpublic information relating to such party or any Subsidiary of such party or for access to the properties, books or records of such party or any Subsidiary of such party by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information tothat has made, or enter into discussions or negotiations with, to such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee party's knowledge may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommendbe considering making, an Acquisition Proposal, and (iiiB) authorize or permit will keep the Company other party to enter into this Agreement reasonably informed of any agreement (an “Acquisition Agreement”) contemplating an changes to the material terms of any such Acquisition Proposal or (iv) permit request. Each of Parent and the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the CompanyCompany shall, any Person (other than the Buyer Parties and shall cause their respective Affiliates) or any action taken by any such PersonSubsidiaries to, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated terminated, and use reasonable best efforts to cause its officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives Persons with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Proposal.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Honeywell Inc), Merger Agreement (Alliedsignal Inc)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement until the Effective Time or the termination of this Agreement pursuant to Article IX hereof, the Company shall agrees that the Company and its Subsidiaries will not, directly and will cause their respective officers, directors, employees, other agents (including, without limitation, investment bankers, attorneys or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies accountants) not to, directly or indirectly, (i) take any action to solicit, initiate, encourage, induce enter into any agreement relating to or otherwise facilitate any inquiries regardingoffer or proposal for, or the making, submission, reaffirmation or announcement any indication of any Acquisition Proposal or take any action that could reasonably be expected to lead to interest in an Acquisition Proposal, (ii) furnish waive any provision of any standstill or similar agreements entered into by the Company of its Subsidiaries, or (iii) engage in or continue discussions or negotiations with or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal, or disclose any nonpublic information regarding relating to the Company or its Subsidiaries, respectively, or afford access to their respective properties, books or records, to any Person that may be considering making, or has made, an Acquisition Proposal. Notwithstanding the foregoing, (i) nothing contained in this Section 6.3 will prohibit the Board of Directors of the Acquired CompaniesCompany from (A) furnishing information to, or provide any access to the booksentering into discussions or negotiations with, records or personnel of any of the Acquired Companies, to any Person in connection with or an unsolicited bona fide proposal in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead writing by such Person with respect to an Acquisition Proposal, if, and only to the extent that (iii1) engage inthe Board of Directors of the Company, continue after consulting with outside legal counsel to the Company, determines in good faith that such action is required for the Board of Directors of the Company to comply with its fiduciary duties to stockholders imposed by Law and (2) prior to furnishing such information to, or otherwise participate in any entering into discussions or negotiations with any Person in respect ofwith, such Person, the Company provides written notice to the Acquiror to the effect that it is furnishing information to, or otherwise cooperate entering into discussions or negotiations with, such Person and the Company keeps Acquiror informed of the status of the principal financial terms of any such negotiations or discussions; or (B) complying with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or and (vii) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting taking the foregoing, it is agreed that any violation of actions contemplated by (i) above under the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or circumstances described therein will not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentAgreement.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Unitrode Corp)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement through the Effective Time, the Company LSBG shall not, directly nor shall it authorize or indirectlypermit any of its Subsidiaries or their respective directors, and shall cause the officers or employees or any investment banker, financial advisor, attorney, accountant or other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not representative retained by it to, directly or indirectlyindirectly through another Person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information or assistance), encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action designed to facilitate or that could is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably be expected likely to lead to an to, any Acquisition Proposal, (ii) furnish enter into any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection agreement with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead respect to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (vother than BHB) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle information or similar document data with respect to LSBG or any Contract contemplating of the LSBG Subsidiaries or otherwise relating to an Acquisition Proposal, or (iv) make or authorize any statement or recommendation in support of any Acquisition TransactionProposal. Without limiting Notwithstanding the foregoingforegoing sentence, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of LSBG may take any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any actions described in clause (iii) of the Acquired Companies or otherwiseforegoing sentence only if, shall be deemed (A) LSBG has received a bona fide unsolicited written Acquisition Proposal prior to be the LSBG Meeting that did not result from a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal5.11, (B) the Company LSBG Board or its Special Committee concludes of Directors determines in good faith, after consultation with and having considered the Company’s or the Special Committee’s advice of its outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent its financial advisor of nationally recognized reputationadvisor, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal Proposal, (C) LSBG provides BHB with at least three (3) Business Day’s prior notice of such determination (the “Notice of Superior Proposal”), which notice shall include the name of such Person and the material terms and conditions of any such Acquisition Proposal, and (D) prior to furnishing or affording access to any such nonpublic information or data with respect to such PersonLSBG or otherwise relating to an Acquisition Proposal, the Company LSBG receives from such Person an executed a confidentiality agreement containing customary limitations on with terms no less favorable to LSBG than those contained in the use Confidentiality Agreement between BHB and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisionsLSBG. As LSBG shall promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent BHB any nonpublic non-public information concerning any of the Acquired Companies that is furnished regarding LSBG and its Subsidiaries provided to any third other Person or its Representatives which that was not previously provided to ParentBHB, such additional information to be provided no later than the date of provision of such information to such other party.
(b) From Notwithstanding Section 5.04, prior to the date of the LSBG Meeting, the LSBG Board may approve or recommend to the stockholders of LSBG a Superior Proposal and withdraw, change, qualify or modify the LSBG Recommendation in connection therewith (a “Change in Recommendation”) after the execution fifth (5th) Business Day following BHB’s receipt of this Agreement, except to the extent Notice of Superior Proposal advising BHB that doing so would the LSBG Board has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result in from a breach of this Section 5.11) constitutes a Superior Proposal (it being understood that LSBG shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its affiliates that LSBG proposes to accept and the subsequent notice period (which shall not shorten such original five (5) Business Day period) shall be two (2) Business Days) if, but only if, (a) the LSBG Board has reasonably determined in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be reasonably likely to violate its fiduciary duties, each of the Company Parties shall promptlyduties to LSBG’s stockholders under applicable law, and in any event within forty-eight (48b) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) during such five (5) Business Day period or two (2) Business Day Period (as the receiptcase may be), directly LSBG has negotiated, and has used its reasonable best efforts to cause its financial and legal advisors to negotiate, with BHB in good faith to make such adjustments, modifications or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by amendments in the Company, (ii) the material terms and conditions of this Agreement such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making that such Acquisition Proposal would no longer constitute a Superior Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approveat the end of such five (5) Business Day period or two (2) Business Day period (as the case may be), authorize after taking into account any such adjusted, modified or recommendamended terms as may have been committed to in writing by BHB since its receipt of such Notice of Superior Proposal (provided, however, that BHB shall not have any obligation to propose any adjustments, modifications or propose publicly or approveamendments to the terms and conditions of this Agreement), authorize or recommendthe LSBG Board has again in good faith made the determination (x) in clause (a) of this Section 5.11, an Acquisition Proposal, and (iiiy) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an that such Acquisition Proposal constitutes a Superior Proposal. Notwithstanding the foregoing, the withdrawal, changing, qualifying or (iv) permit modifying of the Acquired Companies to take LSBG Recommendation or the making of a Change in Recommendation by the LSBG Board shall not change the approval of the LSBG Board for purposes of causing any action to exempt or make not subject to any applicable “moratorium,” “control share,” “fair price,” “affiliate transactiontakeover,” “business combination” or other anti-takeover Legal Requirements or any “excess shareinterested stockholder” or similar ownership limitation provisions (law to be inapplicable to this Agreement and the LSBG Voting Agreements and the transactions contemplated hereby and thereby, including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresMerger.
(dc) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company LSBG shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions or negotiations with any Persons (other action than BHB) conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any of the foregoing, and shall use reasonable best efforts to cause all Persons other than BHB who have been furnished confidential information regarding LSBG in connection with the solicitation of or discussions regarding an Acquisition Proposal effective as of within the twelve (12) months prior to the date hereof, (ii) request that all confidential information previously furnished hereof promptly to any third party be returned promptly and (iii) deny access to any data room containing any return or destroy such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company information. LSBG agrees not to release or permit any third party from the release confidentiality and standstill provisions of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies LSBG is or may become a party, and will use its reasonable best efforts shall immediately take all steps necessary to enforce terminate any approval that may have been heretofore given under any such provisions authorizing any Person (other than BHB) to make an Acquisition Proposal. LSBG shall ensure that the directors, officers, employees, agents and representatives (including any investment bankers, financial advisors, attorneys, accountants or cause other retained representatives) of LSBG are aware of the restrictions described in this Section 5.11 as reasonably necessary to avoid violations thereof. It is understood that any violation of the restrictions set forth in this Section 5.11 by any director, officer, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of LSBG, at the direction or with the consent of LSBG, shall be deemed to be enforced each such agreement at the request a breach of Parentthis Section 5.11 by LSBG.
Appears in 2 contracts
Sources: Merger Agreement (Lake Sunapee Bank Group), Merger Agreement (Bar Harbor Bankshares)
No Solicitation. (a) During Subject to Section 6.1(b) hereof, from the Pre-Closing PeriodAgreement Date until the Acceptance Time, or, if earlier, the valid termination of this Agreement in accordance with Section 7.1 hereof, the Company shall not, directly or indirectly, and the Company shall cause the its Subsidiaries and their respective officers, directors, employees, investment bankers, attorneys, accountants, consultants and other Acquired Companiesagents and advisors (collectively, its Representatives and the Representatives of the other Acquired Companies “Representatives”) not to, directly or indirectly, :
(i) solicit, initiate, encourage, induce initiate or facilitate any inquiries regarding, or knowingly encourage (including by way of providing non-public information) the making, submission, reaffirmation submission or announcement of any Acquisition Proposal inquiries, proposals or take any action offers that could constitute or would reasonably be expected to lead to result in an Acquisition Proposal, ;
(ii) furnish provide any nonpublic non-public information regarding concerning the Company or any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, ;
(iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, ;
(iv) approve, adopt, endorse or recommend any Acquisition Proposal or Proposal; or
(v) enter into any agreement, letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting Transaction or enter into any agreement, letter of intent or similar document requiring the foregoing, it is agreed that Company to exempt any violation of third party from the restrictions set forth contained in this any state takeover or similar Laws or otherwise cause such restrictions not to apply to such third party or to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in Section 6.3(a6.1(a) by hereof or any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach other provisions of this Section 6.3(a) by the Company. Notwithstanding the foregoingAgreement, from the date hereof and if at any time prior to the adoption of this Agreement by the Required Company Shareholder VoteAcceptance Time, nothing in this Agreement (including this Section 6.3(a)i) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to has received a bona fide written Acquisition Proposal (other than an Acquisition Proposal that is submitted to arises as a result of a breach of any of the Company by such Person during such period (and not withdrawnprovisions set forth in Section 6.1(a) which hereof) that is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (Bii) the Company Board or its Special Committee concludes determines in good faith, after consultation having consulted with the Company’s or the Special Committee’s outside legal counsel, that the failure to take such action would be inconsistent with the its fiduciary obligations to the Company Shareholders and other stakeholders of the Company Board to the Company’s shareholders under applicable Legal RequirementsLaw, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (Diii) prior to furnishing or making available any such nonpublic non-public information to to, or entering into discussions or negotiations with such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure gives Parent written notice of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such the Acquisition Proposal and (iv) of the Company’s intention to furnish or make available non-public information to, or enter into discussions or negotiations with, such Person. The , and the Company shall keep receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions and use restrictions) at least as favorable to the Company as the provisions of the Confidentiality Agreement, and (iv) simultaneously with furnishing or making available any non- public information to such Person, the Company makes available such non-public information to Parent reasonably informed on a prompt basis as (to any material developments the extent the Company has not previously made available such non-public information to Parent), then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and (B) engage in discussions or negotiations with the Person making such Acquisition Proposal regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not shall promptly (i) withdraw, qualify or modifyand, in a manner adverse to any event, within one (1) Business Day) notify Parent in the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to event that the Company, any Person (other than Subsidiary of the Buyer Parties and Company or any of their respective Affiliates) or Representatives receives any action taken by any such PersonAcquisition Proposal, which Person or action would have otherwise have been subject to including the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier identity of the Required Company Stockholder Vote Person making such Acquisition Proposal, and the termination material terms and conditions thereof and, if applicable, shall provide Parent with copies of this Agreement pursuant to Article XIany written requests, proposals or offers from the Person making such Acquisition Proposal promptly after receipt thereof. The Company Board or its Special Committee may take one or more of the actions described in the preceding clauses shall keep Parent informed with respect to: (i) – the status of any such Acquisition Proposal; and (ivii) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations status and material terms of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresany material modification thereto.
(d) Until the earlier The Company shall, and shall cause each of the Merger Effective Time its Subsidiaries and the termination of this Agreement pursuant to Article XIits and their Representatives to, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation solicitations or other action conducted by discussions with any Person ongoing as of the Acquired Companies or any date of their respective Representatives this Agreement with respect to any actual or potential Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Proposal.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which any of the Acquired Companies Company is a partyparty or under which the Company has any rights to the extent permitted thereunder, and will use its commercially reasonable best efforts to enforce or cause each such agreement to be enforced (it being understood that any automatic termination of any such provision resulting from the execution and delivery of this Agreement shall not constitute a breach of this Section 6.1(e)). The Company also shall promptly request each Person that has executed a confidentiality agreement with the Company or its Subsidiaries within the last 18 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in the Company to return to the Company or destroy all confidential information heretofore furnished to such agreement at Person by or on behalf of the request of ParentCompany.
Appears in 2 contracts
Sources: Tender Offer Agreement, Tender Offer Agreement (Jazz Pharmaceuticals PLC)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 9.01, the Company shall agrees that it will not, directly and will not authorize or indirectlypermit any of its Subsidiaries or any of its or its Subsidiaries’ directors, officers, employees, agents or representatives (including investment bankers, attorneys and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not accountants) to, directly or indirectly, (i) initiate, solicit, initiate, encourage, knowingly induce or facilitate knowingly encourage any inquiries regarding, regarding or the making, submission, reaffirmation announcement or announcement implementation of any Acquisition Proposal, (ii) engage in any discussions or negotiations with, or provide any information or data to, any Person relating to or that may reasonably be expected to lead to an Acquisition Proposal or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal, (iii) approve or recommend or propose publicly to approve or recommend any Acquisition Proposal or (iv) enter into any agreement, arrangement or understanding contemplating or relating to any Acquisition Proposal or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, with respect to any bona fide written Acquisition Proposal made after the date of this Agreement and not withdrawn which was not solicited, knowingly encouraged or knowingly induced after the date of this Agreement in breach of and did not otherwise result from a breach of this Section 6.03, the Company or its Board of Directors may:
(i) to the extent applicable, comply with Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act, provided that such compliance shall not include any Change of Recommendation except upon compliance with Section 6.03(b)(iv) below;
(ii) file with the Commission a report on Form 8-K to report the execution of this Agreement and file a copy of this Agreement and the Voting Agreements as exhibits to such reports;
(iii) prior to obtaining the Required Company Vote, furnish information to, and negotiate or otherwise engage in discussions with, any Person who has delivered such Acquisition Proposal; provided that (A) no information may be furnished until the Company obtains a confidentiality agreement from such Person with terms no less favorable to the Company than those contained in the Confidentiality Agreement and (B) the Company shall not commence negotiations or discussions with or provide information to any such Person until (1) 48 hours after the Company shall have advised the Parent of its intention to take any such actions and shall have complied with Section 5.03(c) below and then (2) only if prior to taking any such action (x) the Board of Directors of the Company determines in good faith by affirmative vote of a majority of all of its members, after consultation with a nationally recognized investment banking firm (including, without limitation, Broadview), that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal (taking into account any adjustment to the terms and conditions of the Merger proposed by the Parent in response to such Acquisition Proposal) and (y) the Board of Directors of the Company determines in good faith by affirmative vote of a majority of its members, after consultation with its outside legal counsel, that failure of the Board of Directors of the Company to take such action would be a breach of its fiduciary obligations to the Company’s stockholders under applicable Law; or
(iv) prior to obtaining the Required Company Vote, recommend such Acquisition Proposal to its stockholders or, in connection with an Acquisition Proposal, withhold, withdraw, amend or modify its recommendation in favor of this Agreement and the Merger (any such actions being referred to as “Change of Recommendation”) but only at a time that is after the fifth Business Day following the later of (1) the Parent’s receipt of written notice that the Company’s Board of Directors has made the determination required by clauses (x) and (y) below and is prepared to effect a Change of Recommendation and the manner it intends to do so and (2) the date the Parent is provided a copy of (and an accurate description of all material terms not covered thereby) such Acquisition Proposal, if prior to taking any such action (x) the Board of Directors of the Company determines in good faith by affirmative vote of a majority of all of its members, after consultation with a nationally recognized investment banking firm (including, without limitation, Broadview) that such Acquisition Proposal is a Superior Proposal (taking into account any adjustment to the terms and conditions of the Merger proposed by the Parent in response to such Acquisition Proposal) and (y) the Board of Directors of the Company determines in good faith by affirmative vote of a majority of all of its members, after consultation with its outside legal counsel, that the failure of the Board of Directors of the Company to take such action would be a breach of its fiduciary obligations to the Company’s stockholders under applicable Law. Nothing in this Section 6.03 will permit the Company to terminate this Agreement except as specifically provided in Article IX hereof or effect any other obligation of the Company under this Agreement.
(c) From and after the date of this Agreement, the Company shall as promptly as possible after receipt (and in any event within 24 hours) notify the Parent in writing of any inquiries, proposals or offers, or any discussions or negotiations sought to be initiated or continued with, it or any of its Subsidiaries or its or their representatives relating to, constituting or which could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish Proposal or any nonpublic request for information regarding relating to the Company or any of the Acquired Companiesits Subsidiaries contemplating, relating to or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that which could reasonably be expected to lead to an any Acquisition Proposal. Such notice will include the name of such Person and the material terms and conditions of any proposal, inquiry, offer or request, and the Company will as soon as possible provide such other details of the Acquisition Proposal, inquiry, offer or request as the Parent may reasonably request. The Company will keep the Parent fully informed on a prompt basis (iii) engage in, continue or otherwise participate and in any discussions event within 24 hours) of the status and terms, including any material changes or negotiations with adjustments made to or proposed to be made to the terms, of any Person in respect ofsuch inquiry, proposal, offer or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document request. If the Company or any Contract contemplating of its Subsidiaries or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether its or not such their representatives receives a request for information from a Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a who has made an unsolicited bona fide written Acquisition Proposal that is submitted to and the Company by is permitted, as contemplated under Section 6.03(b), to provide such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Personinformation, the Company receives from will provide to the Parent a copy of the confidentiality agreement with such Person an promptly upon its execution and provide to the Parent a list of, and copies of, the information provided to such Person concurrently with delivery to such Person and immediately provide the Parent with access to all information to which such Person was provided access.
(d) The Company will immediately cease and cause to be terminated all existing activities, discussions or negotiations by it and the other Persons referred to in Section 6.03(a) with any Person other than the Parent conducted heretofore with respect to any Acquisition Proposal. The Company also agrees, if it has not already done so, to promptly request each Person, if any, that has heretofore executed a confidentiality agreement containing customary limitations on within the use and disclosure of 12 months prior to the date hereof in connection with any Acquisition Proposal to return or destroy all nonpublic written and oral confidential information heretofore furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person it or its Representatives which was not previously provided Subsidiaries and take commercially reasonable actions necessary to Parent.
(b) From and after enforce the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company provisions of any Acquisition Proposalcontinuing confidentiality, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) standstill or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Personsimilar agreement. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to will take such action would be inconsistent with as is necessary to inform promptly the fiduciary obligations Persons referred to in Section 6.03(a) of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination provisions of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, 6.03 and will use its reasonable best efforts to enforce or cause to be enforced each responsible for any breach of this Section 6.03 by such agreement at the request of ParentPersons.
Appears in 2 contracts
Sources: Merger Agreement (Marimba Inc), Merger Agreement (BMC Software Inc)
No Solicitation. (ai) During Witco agrees that, during the Pre-Closing Periodterm of this Agreement, the Company 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, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, to (iA) solicit, initiateiniti- ate, encourageencourage or facilitate, induce or facilitate furnish or disclose non-public information in furtherance of, any inquiries regardingor the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving Witco, or the making, submission, reaffirmation or announcement acquisition of any Acquisition Proposal capital stock or take any action that could reasonably be expected material portion of the assets (except for acquisition of assets in the ordinary course of business consistent with past practice, transactions disclosed in the Witco Disclosure Schedule and the transactions contemplated by this Agreement) of Witco, or any combination of the foregoing (a "Witco Competing Transaction") or (B) negotiate, explore or otherwise engage in discussions with any person (other than Crompton or Newco or their respective directors, officers, employees, agents and representatives) with respect to lead any Witco Competing Transaction. Witco will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide foregoing and shall use its reasonable best efforts to enforce any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle confidentiality or similar document or any Contract contemplating or otherwise agreement relating to any Acquisition a Witco Competing Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties Witco shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, immediately advise Parent orally and Crompton in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations discussions, negotiations, or proposals relating to a Witco Competing Transaction (including the specific terms thereof), and promptly furnish to Crompton a copy of any Acquisition Proposal such proposal or inquiry in addition to any information provided to or by any third party relating thereto. Notwithstanding the foregoing, prior to receipt of the Witco Stockholders Approval, Witco may, but only to the extent required by the Companyfiduciary obligations of its Board of Directors under Applicable Law, as determined in good faith and on a reasonable basis by such Board of Directors and based on the written advice of outside counsel that not to so act would constitute a violation of such fiduciary obligations, in response to a publicly disclosed proposal for a Witco Competing Transaction that constitutes a Qualifying Witco Proposal that was not solicited or encouraged by Witco or its representatives and that did not otherwise result from the breach or a deemed breach of this Section 7.3(c), and subject to compliance with the notification provisions of this Section 7.3(c), for a 10-day period commencing with the first notification to Crompton under this Section 7.3(c) of receipt of such Witco Competing Transaction, (x) furnish non-public information with respect to Witco to the person proposing such Witco Competing Transaction and its representatives pursuant to a confidentiality agreement with terms no less restrictive of such person than those set forth in the Confidentiality Agreement and (y) participate in discussions or negotiations with such person and its representatives regarding such Witco Competing Transaction.
(ii) Neither the material terms and conditions Board of such Acquisition Proposal, indication, inquiry Directors of Witco nor any committee thereof shall (A) withdraw or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information tomodify, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as propose to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify withdraw or modify, in a manner adverse to the Buyer Parties, or fail to makeCrompton, the Company approval or recommendation by the Board Recommendationof Directors of Witco of this Agreement and the transactions contemplated hereby, (iiB) approve, authorize or permit or cause Witco to enter into, any definitive agreement providing for the implementation of any Witco Competing Transaction (each a "Witco Acquisition Agreement") or (C) approve or recommend, or propose publicly or approve, authorize to approve or recommend, an Acquisition Proposalany Witco Competing Transaction. Notwithstanding the foregoing, prior to receipt of the Witco Stockholders Approval, and only to the extent required by the fiduciary obligations of the Witco Board of Directors under Applicable Law, as determined in good faith and on a reasonable basis by such Board of Directors and based on the written advice of outside counsel that not to so act would constitute a violation of such fiduciary obligations, in response to a publicly disclosed proposal for a Witco Competing Transaction that constitutes a Qualifying Witco Proposal that was not solicited or encouraged by Witco or its representatives and that did not other- wise result from the breach or a deemed breach of this Section 7.3(c), (iiiI) authorize the Board of Directors of Witco may withdraw or permit modify its approval or recommendation of the Company to transactions contemplated by this Agreement and, in connection therewith, approve or recommend such Qualifying Witco Proposal and (II) Witco may enter into any agreement (an “a Witco Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the Agreement contemporaneously with its termination of this Agreement pursuant to Article XI, Section 9.1(i).
(iii) Nothing contained in this Section 7.3(c) shall prohibit Witco from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – Exchange Act.
(iv) in response For purposes of this Agreement, "Qualifying Witco Proposal" means any proposal made by a third party to acquire all of the equity securities or all or substantially all of the assets of Witco, pursuant to a Superior Proposal if the Company Board tender offer, a merger, a consolidation, a recapitalization, a sale of its assets or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counselotherwise, that failure is (A) for consideration that is substantial (as reasonably determined by the Board of Directors of Witco) and is comprised solely of cash and not subject to take such action would financing contingencies, (B) on terms which a nationally recognized independent investment banking firm has opined in writing (with only customary qualifications) to be inconsistent with superior from a financial point of view to the fiduciary obligations holders of Witco Common Stock to the transactions contemplated by this Agreement, taking into account all of the Company Board terms and conditions of such proposal and this Agreement (including the terms of any proposal by Crompton to amend or modify the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier terms of the Merger Effective Time transactions contemplated by this Agreement), and (C) reasonably capable of being completed within 7 months of the termination of this Agreement pursuant to Article XIAgreement, the Company shall immediately (i) cease taking into account all financial, regulatory, legal and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any aspects of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)proposal.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Crompton & Knowles Corp), Agreement and Plan of Reorganization (Witco Corp)
No Solicitation. (a) During From and after the Pre-Closing Perioddate hereof, the Company agrees (i) that it and its subsidiaries shall not, directly nor shall it or indirectlyits subsidiaries authorize or knowingly permit any director, and shall cause the other Acquired Companies, its Representatives and the Representatives officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other Acquired Companies not advisor or representative of the Company or any of its subsidiaries (collectively, the "Representatives") to, directly or indirectly, (i) solicit, initiate, initiate or encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action that could reasonably be expected knowingly to lead to an Acquisition Proposalfacilitate, any Takeover Proposal (iias defined below) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofregarding, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning or data to make or implement, any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Takeover Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (in each case other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition a Takeover Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal made by the Company, Parent; (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company it shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions or other action conducted by any of the Acquired Companies or any of their respective Representatives negotiations with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly persons conducted heretofore with a view to formulating a Takeover Proposal; and (iii) deny access that it shall immediately notify Parent of the receipt of any Takeover Proposal and that it shall keep Parent informed of the status of such Takeover Proposal; provided, however, that, at any time prior to any data room containing any obtaining the Stockholder Approval, the Company may, in response to a bona fide Takeover Proposal that the Board of Directors of the Company determines in good faith could reasonably be expected to lead to a Superior Proposal (as defined below) and which Takeover Proposal did not result from a breach of this Section 4.02, (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement (except that such confidentiality agreement shall not prohibit such person from making an unsolicited Takeover Proposal), provided that all such information is provided on a prior or substantially concurrent basis to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a partyParent, and will use (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its reasonable best efforts to enforce or cause to be enforced each representatives) regarding such agreement at the request of ParentTakeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Rwe Aktiengesellschaft /Adr/), Merger Agreement (American Water Works Co Inc)
No Solicitation. (a) During the Pre-Closing Period, Each of the Company and Parent immediately shall not, directly cease and cause to be terminated all existing discussions or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not negotiations with any Persons conducted heretofore with respect to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition to, any Takeover Proposal. From the date hereof until the Effective Time or earlier termination of this Agreement, neither Parent nor the Company shall, nor shall either permit any of its Subsidiaries to, nor shall either authorize or permit any of its or any of its Subsidiaries' officers, directors, employees, authorized representatives and authorized agents to, (i) solicit, initiate or encourage the submission of any Takeover Proposal, (ii) furnish enter into any nonpublic information regarding agreement with respect to a Takeover Proposal or (iii) participate in any of the Acquired Companiesdiscussions or negotiations regarding, or provide any access to the books, records or personnel of any of the Acquired Companies, furnish to any Person in connection any information with respect to, or in response take any other action to an Acquisition Proposal facilitate any inquiries or an inquiry the making of, any proposal that constitutes, or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Takeover Proposal; PROVIDED, (iv) approveHOWEVER, endorse or recommend that if, at any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and time prior to the adoption Effective Time, the Board of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit Directors of the Company from furnishing nonpublic information regarding or Parent, as the Acquired Companies tocase may be, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the its fiduciary obligations of to its respective stockholders under applicable Laws so require, the Company Board or Parent, as the case may be, in response to a Takeover Proposal which was not solicited subsequent to the Company’s shareholders under applicable Legal Requirementsdate hereof, (A) may furnish to any Person information with respect to the Company or Parent, as the case may be, pursuant to a customary confidentiality agreement, (B) may participate in negotiations regarding such Takeover Proposal and (C) the Company Board or its Special Committee concludes in good faithsubject to full compliance with this SECTION 7.3 and SECTION 8.2, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to may recommend a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parentstockholders.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each Each of the Company Parties and Parent shall promptly, and in any event within forty-eight (48) hours following immediately advise the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent party orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating Takeover Proposal and any request for information with respect to any Acquisition Proposal by the CompanyTakeover Proposal, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry request or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) Takeover Proposal and the identity of the Person making such Acquisition Proposal request or Takeover Proposal. Each of the Company and Parent will keep the other party fully and promptly informed of the status and details (ivincluding amendments or proposed amendments) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding of any such Acquisition request or Takeover Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Except as set forth in this SECTION 7.3, neither the Board of Directors of the Company Board and or Parent, as the Special Committee case may not be, nor any committee thereof shall (i) withdrawwithdraw or modify, qualify or propose publicly to withdraw or modify, in a manner adverse to the Buyer Parties, or fail to makeother party, the Company approval or recommendation by such Board Recommendationof Directors or such committee of the Merger, this Agreement or the Share Issuance, (ii) approve, authorize approve or recommend, or propose publicly or approve, authorize to approve or recommend, an Acquisition Proposal, any Takeover Proposal or (iii) authorize or permit cause the Company or Parent, as the case may be, to enter into any letter of intent, agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal in principle, acquisition agreement or (iv) permit other similar agreement related to any Takeover Proposal. Notwithstanding the Acquired Companies to take any action to exempt or make not foregoing, but subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including compliance with SECTION 8.2, in the Ownership Limitation) applicable to event that the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier Board of Directors of the Required Company Stockholder Vote or Parent, as the case may be, has fully complied with this SECTION 7.3 and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to determines that a Superior Proposal if exists, the Board of Directors of the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’sParent, as applicable) outside legal counselthe case may be, that failure to take such action would be inconsistent with the extent required by the fiduciary obligations thereof, as determined in the good faith judgment of such Board of Directors based on the advice of outside counsel, may withdraw or modify its approval or recommendation of the Merger, this Agreement or the Share Issuance; PROVIDED, HOWEVER, that nothing contained herein (including any such withdrawal or modification of such approval or recommendation) shall release or otherwise affect (A) the Company's obligation under SECTION 8.2(A) to call and hold the Company Stockholders' Meeting and submit the Merger and this Agreement to the stockholders of the Company Board for their approval or (B) Parent's obligation under SECTION 8.2(B) to call and hold the Parent Stockholders' Meeting and submit the Share Issuance to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresstockholders of Parent for their approval.
(d) Until the earlier of the Merger Effective Time and the termination of Nothing contained in this Agreement pursuant to Article XI, SECTION 7.3 shall prohibit the Company shall immediately (i) cease or Parent from taking and cause disclosing to be terminated its respective stockholders a position contemplated by Rules 14d-9 or 14e-2 promulgated under the Exchange Act or from making any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their disclosure to its respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives)stockholders if, in each casethe good faith judgment of its Board of Directors, subject after consultation with outside counsel, such disclosure is required by its fiduciary duties to the Company’s rights and obligations in Section 6.3(a)its respective stockholders under applicable Law or is otherwise required under applicable Law.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Delta Beverage Group Inc), Merger Agreement (Whitman Corp/New/)
No Solicitation. (a) During the Pre-Closing PeriodNeither Brainworks, the Company nor the LLC shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives not authorize or permit any of the other Acquired Companies not Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC) to, directly or indirectly, (i) directly or indirectly solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, Brainworks Corporations (in the case of Brainworks) or provide any access to the books, records or personnel of any AAHoldings Entities (in the case of the Acquired Companies, Company and the LLC) to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting Transaction (other than the foregoingtransactions contemplated by this Agreement); provided, it however, that this Section 4.4(a) shall not prohibit Brainworks from furnishing nonpublic information regarding the Brainworks Corporations to, or entering into discussions with, any Person in response to a Superior Proposal that is agreed that submitted to Brainworks by such Person (and not withdrawn) if (1) neither Brainworks nor any violation Representative of any of the Brainworks Corporations shall have violated any of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal4.4, (B2) the Company Board or its Special Committee board of directors of Brainworks concludes in good faith, after consultation with having taken into account the Company’s or the Special Committee’s written advice of its outside legal counsel, that failure to take such action would be inconsistent is required in order for the board of directors of Brainworks to comply with the its fiduciary obligations of the Company Board to the Company’s shareholders Brainworks' stockholders under applicable Legal Requirementslaw, (C3) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) at least two business days prior to furnishing any such nonpublic information to to, or entering into discussions with, such Person, Brainworks gives the Company LLC written notice of the identity of such Person and of Brainworks' intention to furnish nonpublic information to, or enter into discussions with, such Person, and Brainworks receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Brainworks and containing "standstill" provisions no less favorable to Brainworks than the "standstill" provisions contained that certain letter agreement dated July 2, 2002, between the LLC and Brainworks, and (4) at least two business days prior to furnishing any such nonpublic information to such Person, Brainworks furnishes such nonpublic information to the LLC (to the extent such nonpublic information has not been previously furnished by Brainworks to the LLC). Without limiting the generality of the foregoing, Brainworks, the LLC and the Company each acknowledge and agree that any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any Representative of any of the Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing LLC), whether or not such Representative is purporting to act on behalf of nonpublic information pursuant any of such Entities, shall be deemed to constitute a breach of this Section 6.3(a)4.4 by Brainworks, the Company shall provide to Parent any nonpublic information concerning any of Company, or the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentLLC, as applicable.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties Brainworks shall promptly, promptly (and in any no event within forty-eight (48) later than 24 hours following the initial after receipt by any Acquired Company of any Acquisition Proposal, any inquiry or indication by of interest that could lead to an Acquisition Proposal or any Person considering making an request for nonpublic information) advise the LLC and the Company orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to any of the Acquired Companies Brainworks Corporations (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making or submitting such Acquisition Proposal Proposal, inquiry, indication of interest or request, and (ivthe terms thereof) that is made or submitted by any Person during the Company’s intention to furnish information to, or enter into discussions or negotiations with, such PersonPre-Closing Period. The Company Brainworks shall keep Parent reasonably the LLC and the Company fully informed on a prompt basis as with respect to any material developments regarding the status of any such Acquisition Proposal, indicationinquiry, inquiry indication of interest or request. None of the Acquired Companies shall, after the date hereof, enter into request and any confidentiality agreement that would prohibit them from providing such information to Parentmodification or proposed modification thereto.
(c) The Company Board Brainworks and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company LLC shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by discussions with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Proposal.
(ed) The Company Each of Brainworks and the LLC agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “"standstill” " or similar agreement to which any of the Acquired Companies Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case to the LLC) is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentBrainworks or the LLC.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
No Solicitation. (a) During Neither the Pre-Closing PeriodCompany nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall notuse all reasonable best efforts to cause its and its Subsidiaries’ attorneys, directly or indirectlyaccountants, investment bankers, financial advisors and other agents and representatives (collectively, “Representatives”) not to, and shall cause the other Acquired Companies, on becoming aware of it will use its Representatives and the Representatives of the other Acquired Companies not best efforts to stop any such person from continuing to, directly or indirectly, (i) solicit, initiate, knowingly encourage, induce or facilitate (including by way of furnishing information) any inquiries, proposals or offers that constitute, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) engage in any negotiations or discussions concerning, or provide any non-public information of the Company or its Subsidiaries to any person relating to, or take any other action to facilitate any inquiries regardingor the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal (other than informing persons of the makingexistence of the provisions contained in this Section 6.01), submissionor (iii) enter into any agreement, reaffirmation arrangement or announcement of understanding (other than a confidentiality agreement entered into in accordance with this Section 6.01(a)) contemplating or relating to any Acquisition Proposal or take requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, however, that, prior to receipt of the Company Stockholder Approval, nothing contained in this Agreement shall prevent the Company, or its Board of Directors, from (A) furnishing non-public information to, or entering into discussions or negotiations with, any person in connection with a bona fide written Acquisition Proposal by such person, if and only to the extent that (1) such Acquisition Proposal was made after the date of this Agreement and shall not have been withdrawn, (2) such Acquisition Proposal was not solicited, initiated, knowingly encouraged or facilitated after the date of this Agreement in breach of, and did not otherwise result from a breach of, this Section 6.01(a), (3) the Board of Directors of the Company determines in good faith, after consultation with its outside counsel and financial advisors, that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal, (4) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such person, the Company receives from such person an executed confidentiality agreement with terms as to confidentiality no less favorable in all material respects to the Company than those contained in the Confidentiality Agreement dated April 25, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (5) prior to furnishing such non-public information or providing access to its properties, books or records, the Company has complied with the provisions of Section 6.01(b); (B) complying with Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal; provided that, with respect to this clause (B), any Change of Recommendation is made in compliance with Section 6.01(e); or (C) taking any action permitted to be taken pursuant to the last sentence of Section 6.01(c). The Company agrees that, in the event that it receives a Superior Proposal, for the four Business Day period commencing on the date on which it delivers notice of such Superior Proposal to Parent in accordance with Section 6.01(b), it shall, if requested by Parent, negotiate in good faith with, and cause its financial and legal advisors to negotiate in good faith with, Parent to attempt to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated herein (it being understood and agreed that any amendment to the financial terms or any other material term of any such Superior Proposal shall require a new notice to Parent regarding such Superior Proposal and a new four Business Day period and related negotiation obligation).
(b) The Company shall notify Parent promptly in writing after receipt (and in any event within one Business Day) by the Company (or its Representatives) of any Acquisition Proposal, any inquiries or contacts that are reasonably likely to lead to an Acquisition Proposal, or any request for non-public information or access to the properties, books or records of the Company relating to or which could reasonably be expected to lead to an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. The Company shall (i) continue to keep Parent informed, on a prompt basis (and in any event within two Business Days), of the status of any material developments (including any changes or adjustments made to or proposed to be made to the terms of any such Acquisition Proposal), (ii) furnish provide to Parent promptly (and in any nonpublic information regarding any event within two Business Days) after receipt or delivery thereof with copies of the Acquired CompaniesAcquisition Proposal (including any amendments or supplements thereto); provided that the Company shall not be required to disclose its internal analyses relating to any such Acquisition Proposal, and (iii) provide to Parent a list of, and copies of, the due diligence information provided to the person making such inquiry, contact, proposal, offer or request concurrently with delivery to such person and immediately provide any Parent with access to all due diligence information to which the booksperson making such inquiry, records contact, proposal, offer or personnel request was provided access (except for any such information previously provided to Parent). The Company shall promptly provide to Parent reasonable advance written notice of any scheduled meeting of the Acquired CompaniesBoard of Directors of the Company to make a determination that an Acquisition Proposal is a Superior Proposal.
(c) The Company shall immediately cease and cause to be terminated all existing activities, discussions or negotiations by it, its Subsidiaries and their respective Representatives with any person other than Parent conducted heretofore with respect to any Acquisition Proposal. The Company also agrees, if it has not already done so, to any Person promptly request each person, if any, that has heretofore executed a confidentiality agreement within 12 months prior to the date hereof in connection with or in response to an any Acquisition Proposal to return or an inquiry destroy all confidential information heretofore furnished to such person by or indication on behalf of interest that could reasonably be expected to lead to an Acquisition Proposalit or its Subsidiaries. The Company shall not modify, (iii) engage in, continue amend or otherwise participate in any discussions or negotiations with any Person in respect ofterminate, or otherwise cooperate with respect towaive, assign or release any material rights or claims, or grant any consent under, any Acquisition Proposal, (iv) approve, endorse or recommend confidentiality agreement relating to any Acquisition Proposal or (v) enter into otherwise under any letter of intent, arrangement, understanding, agreement, agreement in principle standstill or similar document agreement or fail to fully enforce any Contract contemplating or otherwise relating to any Acquisition Transactionsuch agreement upon the request of Parent. Without limiting Notwithstanding the foregoing, the Company may grant a consent or waiver under, or otherwise fail to enforce, any such agreement in order to permit a person to make an unsolicited (after the date of this Agreement) Acquisition Proposal to the Company provided that the Company has otherwise complied with this Section 6.01, that upon any grant of waiver or consent, Parent is promptly notified of such waiver or consent and that the Company shall have similarly waived or modified any similar provision in the Confidentiality Agreement as it relates to Parent.
(d) The Company shall take such action as is agreed necessary to inform promptly its Representatives of the provisions of this Section 6.01. The Company agrees that any violation of the restrictions set forth in this Section 6.3(a) 6.01 by any Representative of any of the Acquired Companies, whether Company’s Subsidiaries or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, Representatives shall be deemed to be a breach of this Section 6.3(a) 6.01 by the Company. Notwithstanding .
(e) Neither the foregoing, from the date hereof and prior to the adoption Board of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither Directors of the Company nor any Representative committee thereof shall (i) fail to make, withdraw or modify in a manner adverse to Parent, or publicly propose to withdraw or modify in a manner adverse to Parent, the Company Recommendation, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Acquisition Proposal or (iii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal. Notwithstanding the foregoing provisions of Section 6.01(a) and this Section 6.01(e), if, prior to receipt of the Acquired Companies Company Stockholder Approval, (w) the Company’s Board of Directors shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determined in good faith, after consultation with outside counsel, that the failure to take the actions described in clauses (A) and/or (B) below would be inconsistent with its fiduciary duties under applicable Law, (x) the Company’s Board of Directors has notified Parent in writing of the determination described in clause (w), which notice shall specify in reasonable detail the material events giving rise thereto, (y) at least four Business Days following receipt by Parent of the notice referred to in clause (x) above, and taking into account any revised proposal made by Parent since receipt of the notice referred to in clause (x) above, the Company’s Board of Directors maintains its determination described in clause (w) above, provided, that, during such period after receipt by Parent of such notice, the Company has, if requested by Parent, negotiated in good faith with, and caused the Company’s financial and legal advisors to negotiate in good faith with, Parent to attempt to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated herein, and (z) the Company is in compliance with this Section 6.01, the Company’s Board of Directors may (A) fail to make, withdraw or modify the Special Committee’s Company Recommendation (a “Change of Recommendation”) and/or (B) upon termination of this Agreement in accordance with Section 8.01(h) and concurrent payment of the termination fee in accordance with Section 8.03, approve and enter into an agreement relating to an Acquisition Transaction that constitutes a Superior Proposal. Nothing in this Section 6.01 shall permit the Company to terminate this Agreement except as specifically provided in Article VIII or affect any other obligation of the Company under this Agreement.
(f) Nothing contained in Section 6.01 or otherwise in this Agreement shall prohibit the Company from making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, after consultation with outside legal counsel, that failure so to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so disclose would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight applicable Law (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board including Delaware Law and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(afederal securities Laws).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Grant Prideco Inc), Merger Agreement (National Oilwell Varco Inc)
No Solicitation. (a) During From and after the Pre-Closing Perioddate hereof, the Company shall IFG will not, directly and will not authorize or indirectly, and shall cause the other Acquired Companies, permit any of its Affiliates or Representatives and the Representatives of the other Acquired Companies not to, directly or knowingly indirectly, (i) solicit, initiate, encourage, induce initiate or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement encourage (including by way of any Acquisition Proposal furnishing information) or take any other action that could to facilitate knowingly any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal, Proposal (iias defined herein) furnish from any nonpublic information regarding any of the Acquired CompaniesPerson, or provide engage in any access discussion or negotiations relating thereto or accept any Acquisition Proposal; provided, however, that notwithstanding any other provision hereof, IFG may (i) at any time prior to the bookstime IFG's stockholders shall have voted to approve this Agreement, records engage in discussions or personnel negotiations with a third party who (without any solicitation, initiation or encouragement, directly or knowingly indirectly, by or with IFG or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning IFG and its business, properties and assets if (A) (x) the third party has first made an Acquisition Proposal and IFG's Board of any Directors determines in good faith after consultation with its financial advisors that to do so has a reasonable prospect of the Acquired Companies, to any Person in connection with or in response leading to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected is superior to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any the Merger and for which financing for the Acquisition Proposal has a reasonable prospect to be obtained (as determined in good faith by IFG's Board of Directors after consultation with its financial advisor) (a "Superior Proposal") or (vy) enter into any letter IFG's Board of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, Directors shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes conclude in good faith, after consultation with the Company’s considering applicable provisions of state law, and after considering oral or the Special Committee’s written advice of outside legal counsel, counsel that failure to take such action would be inconsistent with the its fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal law and (DB) prior to furnishing any such nonpublic information to or entering into discussions or negotiations with such Person, IFG (x) except to the Company extent inconsistent with the fiduciary obligation of IFG's Board of Directors provides prompt notice to AIMCO to the effect that it is planning to furnish information to or enter into discussions or negotiations with such Person and (y) receives from such Person an executed confidentiality agreement in reasonably customary form (but not containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(aany standstill provision), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) comply with the material terms provisions of Rule 14e-2 and conditions of Rule 14d-9 promulgated under the Exchange Act with regard to a tender or exchange offer if such Acquisition Proposalprovisions are applicable to IFG or otherwise make any disclosure required by applicable law, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, and/or (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating accept an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Companyfrom a third party, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of provided IFG concurrently terminates this Agreement pursuant to Article XI, Section 9.1(e) and immediately pays the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations Break-Up Fee set forth in Section 6.3(a)9.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Apartment Investment & Management Co), Agreement and Plan of Merger (Insignia Financial Group Inc)
No Solicitation. (a) During Subject to the Pre-Closing Periodprovisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shall and its subsidiaries will not, directly nor will they authorize or indirectlypermit any of their respective officers, and shall cause the directors, affiliates or employees or any investment banker, attorney or other Acquired Companies, its Representatives and the Representatives advisor or representative retained by any of the other Acquired Companies not them to, directly or indirectly, (i) solicit, initiate, encourage, encourage or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate person with respect to, to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing; provided, it is agreed however, that any violation of the restrictions set forth nothing contained in this Section 6.3(a) by any Representative 5.4 shall prohibit the ----------------- Board of any Directors of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person (i) in response to a an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is submitted reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in party making such Acquisition Proposal, (B) and submitting to the Company party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of Directors of the Company Board to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the Company’s shareholders under applicable Legal Requirements, extent that (CA) the Board of Directors of the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputationoutside counsel, that such Acquisition Proposal is reasonably likely its fiduciary obligations under applicable law require it to lead to a Superior Proposal and do so, (DB) prior to (x) concurrently with furnishing any such nonpublic information to, or written questions to such Personparty, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such Person party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or party on behalf of the Company Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and customary “standstill” provisions. As promptly as reasonably practicable following the (C) contemporaneously with furnishing of any such nonpublic information pursuant to this Section 6.3(a)such party, the Company shall provide furnishes such nonpublic information to Parent any (to the extent such nonpublic information concerning any of has not been previously furnished by the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided Company to Parent.
) and (bii) From and after in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the execution of this Agreement, except party making such Acquisition Proposal to the extent that doing so would result in a breach (A) the Board of its fiduciary duties, each Directors of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) its outside legal counsel, that failure to take such action would be inconsistent with the its fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirementslaw require it to do so, but only after following the Superior Proposal Termination Procedures.
(dB) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI(x) concurrently with entering into negotiations with such party, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any gives Parent written notice of the Acquired Companies Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any of their respective Representatives parties conducted heretofore with respect to any Acquisition Proposal effective as Proposal. Without limiting the foregoing, it is understood that any violation of the date hereofrestrictions set forth in the preceding two sentences by any officer, (ii) request that all confidential information previously furnished director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to a breach of this Section 5.4 by the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Palm Inc), Merger Agreement (Extended Systems Inc)
No Solicitation. The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries’ Employees, agents and representatives (aincluding any investment banker, attorney or accountant retained by it or any of its Subsidiaries) During the Pre-Closing Period, the Company not to (and shall not, not authorize any of them to) directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (i) solicit, initiate, encourage, facilitate or induce or facilitate any inquiries regardinginquiry with respect to, or the making, submission, reaffirmation submission or announcement of of, any Acquisition Proposal Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action (including granting any Person a waiver or release under any standstill or similar agreement with respect to any class of equity security of the Company or any of its Subsidiaries, other than as contemplated by this Agreement) to facilitate any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, except to notify such Person as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to Section 6.3(d)), or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether Proposal or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Persontransaction contemplated thereby. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall Subsidiaries will immediately (i) cease and cause to be terminated any and all existing solicitationactivities, discussion, negotiation discussions or other action negotiations with any third parties conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any Acquisition Proposal effective as and shall use commercially reasonable efforts to cause any such Person (including its employees, agents and representatives) in possession of the date hereof, (ii) request that all confidential information previously furnished about the Company in connection with an Acquisition Proposal to any third party be returned promptly and (iii) deny access to any data room containing any return or destroy all such information to any third party (and all materials, documents, analyses and other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)work product containing or derived from that information.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Captaris Inc), Merger Agreement (Castelle \Ca\)
No Solicitation. (a) During the Pre-Closing PeriodExcept as otherwise provided for in this Agreement, the Company agrees that it and its Subsidiaries shall, and that it shall cause its and their respective directors, officers or other employees, controlled Affiliates, or any investment banker, attorney, accountant or other agent or representative retained by any of them (collectively, “Representatives”) to immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and, until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article VIII, not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (i) solicit, initiate, encourage, induce knowingly facilitate or facilitate knowingly encourage any inquiries Acquisition Proposal; (ii) participate in any negotiations regarding, or the making, submission, reaffirmation or announcement of furnish to any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish person any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, ; (iii) engage in discussions with any person with respect to any Acquisition Proposal; (iv) approve, endorse approve or recommend any Acquisition Proposal or Proposal; (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating agreement or otherwise commitment providing for any Acquisition Proposal; (vi) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL), or any restrictive provision of any applicable anti-takeover provision in the certificate of incorporation or bylaws of the Company, inapplicable to any person other than Parent and its Affiliates or to any transactions constituting or contemplated by an Acquisition Proposal; or (vii) resolve or agree to do any of the foregoing. The Company shall promptly after the date hereof instruct each person that has executed a confidentiality agreement (other than the Confidentiality Agreement) relating to any an Acquisition Transaction. Without limiting Proposal or potential Acquisition Proposal with or for the foregoing, it is agreed that any violation benefit of the restrictions Company promptly (and in any case within five Business Days) to return or destroy all information, documents and materials relating to the Acquisition Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives to such person or any of its Representatives in accordance with the terms of any confidentiality agreement with such person, and shall use reasonable best efforts to enforce, and not waive without Parent’s prior written consent, any standstill or similar provision in any confidentiality or other agreement with such person; provided, that if the Special Committee determines in good faith, after consultation with outside counsel, that it would be inconsistent with its fiduciary obligations under Delaware Law not to do so, the Company may waive any standstill or similar provisions in its agreements to the extent necessary to permit a person to make, on a confidential basis to the Special Committee, an Acquisition Proposal, conditioned upon such Person agreeing to disclosure of such Acquisition Proposal to Parent and Acquisition Sub, in each case as contemplated by and subject to compliance with this Section 5.02.
(b) Notwithstanding the limitations set forth in Section 5.02(a), if after the date of this Section 6.3(a) by any Representative of any Agreement but prior to the receipt of the Acquired Companiesapprovals contemplated by Section 7.01(a), whether or the Company receives an unsolicited bona fide Acquisition Proposal that did not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be result from a breach of this Section 6.3(a) by 5.02, which the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputationadvisor, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (a “Competing Proposal”), and, after consultation with outside counsel, that the failure to take the actions described in clauses “(i)” and “(ii)” below would be inconsistent with the Special Committee’s fiduciary duties under Delaware Law, then the Company may take the following actions: (i) furnish information to the third party making such Acquisition Proposal (provided, that substantially concurrently the Company makes available such information to Parent to the extent such information was not previously made available to Parent) and (Dii) engage in discussions and negotiations with the third party and its representatives with respect to such Acquisition Proposal, in each case of clauses “(i)” and “(ii)”, if, and only if, prior to so furnishing any such nonpublic information to such Personinformation, the Company receives from such Person the third party an executed confidentiality agreement containing customary limitations on that (x) in the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf good faith judgment of the Company contains terms that are no less favorable in the aggregate to the Company than the Confidentiality Agreement or (y) that was entered into by the Company with another party in connection with an Acquisition Proposal or potential Acquisition Proposal prior to the execution and customary “standstill” provisions. As promptly as reasonably practicable following delivery of this Agreement (any such confidentiality agreement described in the furnishing of nonpublic information pursuant to this Section 6.3(aimmediately preceding clause (x) or (y), an “Acceptable Confidentiality Agreement”); provided, however, that the Company shall provide written notice to Parent after any nonpublic information concerning such determination by the Special Committee and before taking any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
actions described in clauses “(b) i)” and “(ii)” above. From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and notify Parent promptly (but in any event within forty-eight (48two Business Days) hours following of the initial receipt by any Acquired Company of any Acquisition ProposalProposal and (A) if it is in writing, any indication by any Person considering making an Acquisition Proposal, any request for information relating deliver to any Parent a copy of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any such Acquisition Proposal which and any of related draft agreements and other written material setting forth the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition ProposalProposal or (B) if oral, indication, inquiry or request, together with provide to Parent a copy thereof (if available) or if not in writing, a written description detailed summary of the material terms and conditions thereof, (iii) including the identity of the Person person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Personcompeting proposal. The Company shall keep Parent reasonably informed on a prompt and timely basis as of the status and material details of any such Competing Proposal and with respect to any material developments regarding change to the terms of any such Acquisition Proposal, indication, inquiry or request. None Competing Proposal within one Business Day of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parentmaterial change.
(c) The Neither the Company Board and the Special Committee may not (i) withdrawnor any of its Subsidiaries shall terminate, qualify amend, modify or modify, in a manner adverse to the Buyer Partieswaive any rights under, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, release any Person (other than Parent and Acquisition Sub) from, any “standstill” or other similar agreement between the Buyer Parties and their respective Affiliates) Company or any action taken by any of its Subsidiaries, on the one hand, and such Person, which Person or action would have otherwise have been subject to on the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to other, unless the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes determines in good faith, faith (after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, ) that the failure to take such action would be inconsistent with the its fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresDelaware Law.
(d) Until Subject to Section 5.02(e), neither the earlier Company Board nor any committee thereof, including the Special Committee, shall: (i) withhold, withdraw, amend, qualify or modify in a manner adverse to Parent or Acquisition Sub, or publicly propose to withhold, withdraw, amend, qualify or modify in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation; or (ii) approve, endorse or recommend an Acquisition Proposal; (each of clauses “(i)” and “(ii)”, a “Company Board Recommendation Change”); provided, further, that a “stop, look and listen” communication by the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Merger Effective Time Exchange Act or a statement that the Special Committee has received and is currently evaluating a written proposal or offer regarding a Competing Proposal shall not be prohibited or be deemed to be a Company Board Recommendation Change as long as the Special Committee expressly publicly reconfirms the Company Board Recommendation in such disclosure. At any time following the making by any Person of a public Acquisition Proposal, Parent may submit a written request to the Special Committee that the Special Committee publicly reconfirm the Company Board Recommendation within two (2) Business Days after receipt of such a request.
(e) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to the receipt of the approvals contemplated by Section 7.01(a), the Special Committee (or the Company Board acting on the recommendation of the Special Committee) may: (i) make a Company Board Recommendation Change only in response to (A) the Company receiving an unsolicited, bona fide written Acquisition Proposal not involving a breach of this Agreement that the Special Committee (or the Company Board acting on the recommendation of the Special Committee) determines in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal or (B) an Intervening Event; or (ii) if the Company has complied with this Section 5.02, cause the Company to terminate this Agreement and, substantially concurrently with, and as a condition to, such termination, cause the Company to enter into a definitive written agreement providing for such Superior Proposal, which proposal did not result from any breach of this Section 5.02, if and only if, in all cases, (x) the Special Committee determines in good faith, after consulting with and receiving advice from outside counsel, that the failure to (1) effect a Company Board Recommendation Change or (2) terminate this Agreement and enter into a definitive written agreement providing for a Superior Proposal, in each case, would be inconsistent with its fiduciary duties under Delaware Law and (y) the Company complies with the provisions of Section 5.02(g) and Section 5.02(h).
(f) Nothing in this Agreement shall prohibit the Special Committee (or the Company Board acting on the recommendation of the Special Committee) from: (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act; and (ii) making any disclosure to the Company Stockholders that the Special Committee (or the Company Board acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be inconsistent with its fiduciary duties to the Company Stockholders under Delaware Law; provided, that, (A) this Section 5.02(f) shall not in and of itself be deemed to permit the Special Committee to make a Company Board Recommendation Change that would not otherwise be permitted pursuant to Section 5.02(e), and (B) in either such case, any such statement(s) or disclosures made by the Company Board or the Special Committee will be subject to the terms and conditions of this Agreement, including the provisions of Article VIII. Without limiting the generality of the foregoing, a factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Proposal, that the Company is evaluating such Acquisition Proposal and the provisions of this Agreement related thereto, or any other disclosure permitted by this Section 5.02(f) shall not be deemed a Company Board Recommendation Change as long as the Special Committee expressly publicly reconfirms the Company Board Recommendation in such disclosure.
(g) Subject to Section 5.02(h), (i) no Company Board Recommendation Change may be made in response to a Superior Proposal or Intervening Event and (ii) no termination of this Agreement in accordance with Section 5.02(e) may be made: (A) until the fourth (4th) Business Day following Parent’s receipt of written notice from the Company advising Parent that the Special Committee (or the Company Board acting on the recommendation of the Special Committee) intends to, in the case of clause “(i)”, make such Company Board Recommendation Change, or, in the case of clause “(ii)”, terminate this Agreement in accordance with Section 5.02(e) (each, a “Company Board Recommendation Notice”) which notice shall specify (1) in the case of such an action taken in connection with a Superior Proposal, the terms and conditions of such Superior Proposal (including the identity of the Person making such Superior Proposal and a copy of the then-current forms of all of the relevant proposed transaction documents related thereto, including definitive agreements with respect to such Superior Proposal) or (2) if the basis of the proposed action by the Special Committee (or the Company Board acting on the recommendation of the Special Committee) is an Intervening Event, a detailed description of the Intervening Event; and (B) unless the Company shall, (x) during the four (4) Business Day period specified above (and any additional period related to a revision to the Superior Proposal, as provided below), negotiate, and cause its financial and legal advisors to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) with respect to any adjustments proposed by Parent to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal (or, in the case of a Company Board Recommendation Notice that is related to an Intervening Event, so that the failure to make such Company Board Recommendation Change would no longer be inconsistent with the Company Board’s or the Special Committee’s fiduciary duties under Delaware Law) and no agreement is reached and (y) concurrently with, and as a condition to, the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective RepresentativesSection 5.02(e), in each case, subject to pay the Company’s rights and obligations Termination Fee as set forth in Section 6.3(a8.03(b)(i).
(eh) The parties agree that, in the case of such actions taken in connection with a Superior Proposal, any material amendment to the financial terms or other material terms of such Superior Proposal shall require a new Company Board Recommendation Notice and an additional two Business Day period (the period inclusive of all such days, the “Notice Period”). The Company agrees not that: (i) during the Notice Period the Company shall, and shall cause its financial advisors and outside legal counsel to, negotiate with Parent in good faith (if Parent indicates to release or permit the release Company that it desires to negotiate) the terms of this Agreement and (ii) the Company shall take into account all changes and adjustments to the terms of this Agreement proposed by Parent in determining whether such Acquisition Proposal continues to constitute a Superior Proposal. The Company shall promptly keep Parent informed of all developments affecting the material terms of any Person from, or to waive or permit such Superior Proposal (and the waiver Company shall provide Parent with copies of any provision of, any confidentiality, “standstill” or similar agreement additional material written materials received that relate to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentSuperior Proposal).
Appears in 2 contracts
Sources: Merger Agreement (Rouse Properties, Inc.), Merger Agreement (Brookfield Asset Management Inc.)
No Solicitation. (a) During the Pre-Closing PeriodRomeo agrees that neither it nor any of its Subsidiaries shall, the Company nor shall not, directly it nor any of its Subsidiaries authorize or indirectly, and shall cause the other Acquired Companies, its Representatives and permit any of the Representatives retained by it or any of the other Acquired Companies not its Subsidiaries to, directly or indirectly, : (i) solicit, initiate, encourage, induce respond to or take any action to facilitate or encourage any inquiries regarding, or the communication, making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could would reasonably be expected to lead to an Acquisition Proposal, Proposal or Acquisition Inquiry; (ii) furnish any nonpublic information regarding any of the Acquired Companies, enter into or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to any Acquisition Proposal or Acquisition Inquiry; (iii) furnish any information regarding Romeo or any of its Subsidiaries to any Person in connection with, in response to, any relating to or for the purpose of assisting with, facilitating or encouraging an Acquisition Proposal, Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal or (subject to Section 6.1) (v) execute or enter into any letter of intent, arrangementagreement in principle, understandingterm sheet, acquisition agreement, joint venture agreement, partnership agreement, merger agreement, option agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoingTransaction (an “Acquisition Agreement”); or (vi) grant any waiver or release under any confidentiality, it is agreed that standstill or similar agreement (other than to Nikola) or approve any violation transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the restrictions set forth DGCL.
(b) Notwithstanding anything contained in this Section 6.3(a) by any Representative of any of the Acquired Companies5.4(a), whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder VoteAcceptance Time, nothing in this Agreement (including this Section 6.3(a)i) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering Romeo may enter into or conducting discussions or negotiations with, with any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period has made (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such bona fide, unsolicited, Acquisition Proposal, (B) the Company which Romeo’s Board or its Special Committee concludes of Directors determines in good faith, after consultation with the Company’s or the Special Committee’s its independent financial advisor and its outside legal counsel, constitutes, or is reasonably likely to lead to, a Superior Offer, and (ii) thereafter furnish to such Person non-public information regarding Romeo pursuant to an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions, no-hire provisions and “standstill” provisions) at least as favorable to Romeo as those contained in the Confidentiality Agreement, but in each case of the foregoing clauses (i) and (ii), only if: (A) neither Romeo nor any Representative of Romeo has breached this Section 5.4; (B) the Romeo Board of Directors determines in good faith based on the advice of outside legal counsel that the failure to take such action would be inconsistent with the fiduciary obligations duties of the Company Romeo Board to the Company’s shareholders of Directors under applicable Legal Requirements, ; (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and at least twenty-four (D24) hours prior to furnishing any such nonpublic non-public information to to, or entering into discussions with, such Person, Romeo (x) gives Nikola written notice of the identity of such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposalany proposals or offers (including, indicationif applicable, inquiry copies of any written requests, proposals or requestoffers, together with a copy thereof (if availableincluding proposed agreements and proposed financing) or if not in writingmade thereby, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the CompanyRomeo’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (y) furnishes concurrently such non-public information to Nikola (to the extent such non-public information has not been previously furnished by Romeo to Nikola). The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None Without limiting the generality of the Acquired Companies shallforegoing, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board Romeo acknowledges and the Special Committee may not (i) withdraw, qualify or modifyagrees that, in the event any Romeo Representative (whether or not such Representative is purporting to act on behalf of Romeo) takes any action that, if taken by Romeo, would constitute a manner adverse to the Buyer Parties, or fail to makebreach of this Section 5.4 by Romeo, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company taking of such action by such Representative shall be deemed to enter into any agreement (an “Acquisition constitute a breach of this Section 5.4 by Romeo for purposes of this Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary hereinset forth in this Section 5.4, if the Romeo receives a bona fide written Acquisition Proposal or Acquisition Inquiry from a third party that was not initiated, sought, solicited, knowingly facilitated, knowingly encouraged, knowingly induced or otherwise procured in violation of this Agreement, then Romeo may contact the Person or any of its Representatives who has made such Acquisition Proposal or Acquisition Inquiry solely to clarify the terms of such Acquisition Proposal or Acquisition Inquiry so that the Romeo Board of Directors may inform itself about such Acquisition Proposal or Acquisition Inquiry and to inform such Person or its Representatives of this Section 5.4; provided that such action may only be to request from such Person a written response to questions for the purpose of clarifying such Acquisition Proposal or Acquisition Inquiry (and not for the purpose of engaging, directly or indirectly, in any discussions or negotiations of any sort regarding the material terms of the Acquisition Proposal or Acquisition Inquiry); provided further (x) simultaneously with sending any written communication to such Person, the Romeo shall deliver to Nikola a copy of such written communication, and (y) promptly (and in any event within 24 hours) after receiving any communication from such Person, the Romeo shall deliver to Nikola a copy of such communication.
(c) If Romeo or any Romeo Representative receives an Acquisition Proposal or Acquisition Inquiry at any time prior during the Pre-Closing Period, then Romeo shall promptly (and in no event later than twenty-four (24) hours after Romeo becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise Nikola orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, the terms thereof (including proposed financing), and any written materials submitted therewith). Romeo shall keep Nikola informed, on a current basis, in all material respects with respect to the earlier status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto, and shall deliver copies of any written materials submitted therewith. In addition to the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XIforegoing, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses Romeo shall provide Nikola with at forty-eight (i48) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s hours’ written notice (or the Special Committee’s, as applicablesuch shorter period of notice provided to its board of directors) outside legal counsel, that failure of a meeting of its board of directors (or any committee thereof) at which its board of directors (or any committee thereof) is reasonably expected to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior consider an Acquisition Proposal Termination Proceduresor Acquisition Inquiry Romeo has received.
(d) Until the earlier of the Merger Effective Time Romeo shall and the termination of this Agreement pursuant shall cause its Representatives to Article XI, the Company shall cease immediately (i) cease and cause to be terminated any existing solicitationterminated, discussion, negotiation and shall not authorize or other action conducted by knowingly permit any of its Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the Acquired Companies or any date of their respective Representatives this Agreement with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly or Acquisition Inquiry and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will shall use its reasonable best efforts to enforce cause any such third party (or cause its Representatives) in possession of non-public information in respect of Romeo or its Subsidiaries that was furnished by or on behalf of Romeo or its Subsidiaries to be enforced each return or destroy (and confirm destruction of) all such agreement at the request of Parentinformation.
Appears in 2 contracts
Sources: Merger Agreement (Nikola Corp), Merger Agreement (Romeo Power, Inc.)
No Solicitation. Each of the Shareholders hereby agrees:
(a) During from and after the Pre-Closing Perioddate hereof until such Shareholder's Applicable Termination Time, the Company shall (i) not to, (ii) not to authorize or permit any of such Shareholder's affiliates or any of such Shareholder's or such Shareholder's affiliates' officers, directors, employees and partners to, (iii) not to authorize such Shareholder's or any of such Shareholder's affiliates' agents or representatives to and (iv) to use all reasonable efforts to ensure that such Shareholder's and such Shareholder's affiliates' agents and representatives do not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (ix) solicit, initiate, encourage, induce solicit or knowingly encourage or otherwise facilitate (including providing any inquiries regarding, or nonpublic information relating to Company and its Subsidiaries) the making, submission, reaffirmation or announcement making of any an Acquisition Proposal or take (y) engage in any action discussions or negotiations with, or provide any nonpublic information relating to Company and its Subsidiaries to, any Person relating to, or that could would reasonably be expected to lead to the making of, an Acquisition Proposal;
(b) to immediately cease and cause to be terminated all existing activities, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations by such Shareholder, any of such Shareholder's affiliates or any of such Shareholder's or such Shareholder's affiliates' officers, directors, employees, partners, agents and representatives with any Person in respect of, or otherwise cooperate other than Parent with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend to any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle the solicitation or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company making of any Acquisition Proposal;
(c) from and after the date hereof until such Shareholder's Applicable Termination Time, any indication by promptly notify Parent if any Person considering makes, or indicates an interest in making, an Acquisition Proposal to such Shareholder or any of such Shareholder's affiliates or to such Shareholder's or any of such Shareholder's affiliates' officers, directors, employees, partners, agents and representatives, and to include in such notice the identity of the Person or group making or indicating an interest in making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business Proposal and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, ; and
(d) from and after the date hereofhereof until such Shareholder's Applicable Termination Time, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating or understanding with any person that provides for, or in any way facilitates, an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Proposal.
(e) The This Section 1.4 shall not prevent any Shareholder or any of its affiliates, officers, directors, employees, partners, agents or representatives who is a member of the Board of Directors of Company agrees from taking any actions otherwise prohibited by this Section 1.4 to the extent that such actions are expressly permitted by the Merger Agreement. For purposes of this Section 1.4, Company shall be deemed not to release or permit the release be an affiliate of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentShareholder.
Appears in 2 contracts
Sources: Voting Agreement (Eex Corp), Voting Agreement and Irrevocable Proxy (Newfield Exploration Co /De/)
No Solicitation. (a) During The Company shall, and shall cause its Representatives to, cease any negotiations that may be ongoing as of the Pre-Closing Period, the date of this Agreement with any Person with respect to any Takeover Proposal. The Company shall not, directly or indirectly, and shall cause not authorize or (to the other Acquired Companies, extent within its control) permit the Company’s Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicitsolicit any Takeover Proposal or (ii) participate in any negotiations with any third party regarding any Takeover Proposal. Notwithstanding the foregoing, initiate, encourage, induce or facilitate the Company and the Company’s Representatives may in any inquiries regarding, or event have discussions with any Person in order to (A) clarify and understand the making, submission, reaffirmation or announcement terms and conditions of any Acquisition Proposal bona fide written inquiry or take any action that proposal made by such Person (so long as such inquiry or proposal was unsolicited or was made prior to the execution of this Agreement and so long as such inquiry or proposal did not result from a willful breach of this Section 6.5) and to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to an Acquisition Proposal, a Superior Proposal and (iiB) furnish any nonpublic information regarding any notify such Person of the Acquired Companies, or provide any access to the books, records or personnel provisions of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transactionthis Agreement. Without limiting the foregoing, it is agreed The Company agrees that any violation of the restrictions set forth in this Section 6.3(a) 6.5 by any Representative of the Company or any of its Subsidiaries, at the Acquired Companies, whether direction or not such Person is purporting to act on behalf of any with the consent of the Acquired Companies Company or otherwiseits Subsidiaries (or with the prior Knowledge of the Company or its Subsidiaries if the Company shall have failed to instruct such Representatives not to commit such violation upon becoming aware of such proposed violation), shall be deemed to be a breach of this Section 6.3(a) 6.5 by the Company. Notwithstanding the foregoingIf, from after the date hereof of this Agreement and prior to the adoption of this Agreement by the Required Company Shareholder VoteAcceptance Time, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes receives an unsolicited bona fide Takeover Proposal that it determines in good faith, after consultation with (and consideration of the advice of) the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of counsel and the Company Board to the Company’s shareholders under applicable Legal RequirementsFinancial Advisor, (C) the Company Board constitutes or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is could reasonably likely be expected to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such PersonProposal, then the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral may furnish any information furnished with respect to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing Company’s Subsidiaries to the Person making such Takeover Proposal and participate in discussions and negotiations with such Person regarding a Takeover Proposal; provided that (x) such Person enters into an Acceptable Confidentiality Agreement and (y) a copy of nonpublic all such information pursuant to this Section 6.3(a), the Company shall provide not previously provided to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person (or its Representatives which was not previously Representatives) is promptly provided to Parent.
(b) From and after the execution of Except as expressly permitted by this AgreementSection 6.5(b), except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties Board shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify (A) withdraw or modify, in a manner adverse to the Buyer Parties, or fail to makeParent, the Company Board Recommendation, Recommendation or (B) publicly recommend to the Company’s stockholders a Takeover Proposal (any action described in this clause (i) being referred to as a “Recommendation Change”) or (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company or any of the Company’s Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, an “Alternative Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit ). However, if, after the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties date of this Agreement and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XIAcceptance Time, the Company Board or its Special Committee may take one or more receives an unsolicited bona fide Takeover Proposal that, after consultation with (and consideration of the actions described advice of) the Company’s outside counsel and the Company Financial Advisor, the Company Board concludes in good faith constitutes a Superior Proposal, then the preceding clauses (i) – (iv) in response Company Board may withdraw or modify the Company Board Recommendation or recommend such Superior Proposal and the Company or the Company’s Subsidiaries may enter into an Alternative Acquisition Agreement with respect to a such Superior Proposal if the Company shall have concurrently with entering into such Alternative Acquisition Agreement terminated this Agreement pursuant to Section 8.4(b).
(c) Nothing contained in this Agreement (including, without limitation, this Section 6.5) shall prohibit the Company Board from (i) making any “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9 under the Exchange Act or (ii) complying with its Special Committee concludes in good faithdisclosure obligations under U.S. federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (iii) disclosing the fact that the Company Board has received a Takeover Proposal and the terms of such proposal, if the Company Board determines, after consultation with the Company’s (or the Special Committee’s, as applicable) its outside legal counsel, that the failure to take any such action actions would be inconsistent with its fiduciary duties under applicable Law or to comply with obligations under federal securities Laws; provided that any disclosure other than a “stop, look and listen” or similar communication of the fiduciary obligations of type contemplated by Rule 14d-9 under the Exchange Act shall be deemed to be a Recommendation Change unless the Company Board (A) expressly reaffirms its recommendation to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresits stockholders in favor of adoption of this Agreement or (B) rejects such other Takeover Proposal.
(d) Until Notwithstanding anything in this Agreement to the earlier of contrary, the Merger Effective Time and the termination of Company Board may not effect a Recommendation Change or terminate this Agreement pursuant to Article XI, the Company shall immediately Section 8.4(b) unless (i) cease the Company has: (A) complied in all material respects with this Section 6.5, (B) provided to Purchaser at least three (3) Business Days’ prior written notice advising Purchaser that the Company Board intends to take such action and cause to be terminated specifying the reasons therefor, including the terms and conditions of any existing solicitation, discussion, negotiation or other action conducted by any Superior Proposal that is the basis of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as proposed action and the identity of the date hereofperson making the proposal, and (C) during such three (3) Business Day period, if requested by Purchaser, engaged in good faith negotiations with Purchaser to amend this Agreement in such a manner to improve the terms of this Agreement in favor of the Company so that any Takeover Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal and (ii) request that all confidential information previously furnished at the end of such three (3) Business Day period, such Takeover Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into account any third party be returned promptly and changes to the terms of this Agreement as a result of the negotiations required by clause (iiii)(C) deny access or otherwise). In the event of any revisions to a Superior Proposal (including, without limitation, any data room containing any such information to any third party (revision in price or other than the Buyer Parties and their respective Representativesterm), in each case, subject the three (3) Business Day period will restart (it being understood that there may be multiple three (3) Business Day periods pursuant to the Company’s rights and obligations in this Section 6.3(a6.5(d)).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
No Solicitation. (a) During Each of Homology and Q32 agrees that, during the Pre-Closing Period, the Company neither it nor any of its Subsidiaries shall, nor shall not, directly it or indirectly, and shall cause the other Acquired Companies, any of its Subsidiaries authorize any of its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (i) solicit, initiate, initiate or knowingly encourage, induce or facilitate any inquiries regardingthe communication, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action otherwise inconsistent with past practice that could reasonably be expected to lead to an Acquisition ProposalProposal or Acquisition Inquiry, (ii) furnish any nonpublic non-public information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, such Party to any Person (other than Q32 or Homology) in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition ProposalInquiry, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition ProposalProposal or Acquisition Inquiry, (iv) approve, endorse or recommend any Acquisition Proposal or (subject to Section 5.9), (v) execute or enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document intent or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting Transaction or (vi) publicly propose to do any of the foregoing; provided, it is agreed that any violation of the restrictions set forth however, that, notwithstanding anything contained in this Section 6.3(a5.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting and subject to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of compliance with this Section 6.3(a) by the Company. Notwithstanding the foregoing5.3(a), from the date hereof and prior to the adoption approval of this Agreement by Homology’s stockholders (i.e., the Required Company Shareholder Homology Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic Homology may furnish non-public information regarding the Acquired Companies Homology and its Subsidiaries to, or entering and enter into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to by Homology which the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Homology Board or its Special Committee concludes determines in good faith, after consultation with Homology’s financial advisors and outside legal counsel, constitutes, or is reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither Homology nor any Representative of Homology shall have breached this Section 5.3(a) in any material respect, (B) the Company’s or Homology Board concludes in good faith based on the Special Committee’s advice of outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary obligations duties of the Company Homology Board to the Company’s shareholders under applicable Legal RequirementsLaw, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As as promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
possible after (b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48hours of) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of initially furnishing any such inquiriesnon-public information to, negotiations or proposals relating to any Acquisition Proposal by the Companyentering into discussions with, (ii) the material terms and conditions such Person, Homology gives Q32 written notice of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the such Person making such Acquisition Proposal to Q32, and (iv) the Companyof Homology’s intention to furnish non-public information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis , (D) Homology receives from such Person an executed Acceptable Confidentiality Agreement and (E) as to promptly as possible after (and in any material developments regarding event within forty-eight hours of) furnishing any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such non-public information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject Homology furnishes such non-public information to Q32 (to the restrictive provisions thereof and/or extent such information has not exempt therefrombeen previously furnished by Homology to Q32). Notwithstanding anything to the contrary hereinset forth in this Agreement, Homology and its Representatives may, in any event (without the Homology Board having to make a determination in clause (B) of the preceding sentence), contact any person to (i) seek to clarify and understand the terms and conditions of any Acquisition Proposal made by such Person solely to determine whether such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Offer and (ii) inform such Person that has made or, to the knowledge of Homology is considering making an Acquisition Proposal. Without limiting the generality of the foregoing, Homology acknowledges and agrees that, in the event any Representative of Homology takes any action that, if taken by Homology, would constitute a breach of this Section 5.3(a) by Homology, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 5.3(a) by Homology for purposes of this Agreement.
(b) If any Party or any Representative of such Party receives an Acquisition Proposal or Acquisition Inquiry at any time prior during the Pre-Closing Period, then such Party shall promptly (and in no event later than one Business Day after such Party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise the other Party orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and provide a copy of the Acquisition Proposal or Acquisition Inquiry, of if the Acquisition Proposal or Acquisition Inquiry is not written, the terms thereof). Such Party shall keep the other Party reasonably informed with respect to the earlier status and terms of any such Acquisition Proposal or Acquisition Inquiry and any material modification or material proposed modification thereto. In addition to the Required Company Stockholder Vote and foregoing, each Party shall provide the termination other Party with at least forty-eight hours written notice of this Agreement pursuant to Article XI, the Company Board or a meeting of its Special Committee may take one or more board of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s directors (or the Special Committee’s, as applicableany committee thereof) outside legal counsel, that failure at which its board of directors (or any committee thereof) is reasonably expected to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior consider an Acquisition Proposal Termination Proceduresor Acquisition Inquiry it has received.
(dc) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company Each Party shall immediately (i) cease and cause to be terminated any existing solicitationdiscussions, discussion, negotiation or other action conducted by negotiations and communications with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective or Acquisition Inquiry as of the date hereof, (ii) of this Agreement and request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release destruction or permit the release return of any Person from, or non-public information provided to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentPerson.
Appears in 2 contracts
Sources: Merger Agreement (Homology Medicines, Inc.), Merger Agreement (Homology Medicines, Inc.)
No Solicitation. Following the date of this Agreement, the Company shall immediately cease any discussions or negotiations with any Person or group that may be ongoing with respect to any Acquisition Proposal relating to the Company or any of its Subsidiaries (a) During other than the Pre-Closing PeriodExcluded Entities). From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (ia) solicit, initiate, encourage, induce facilitate or facilitate any inquiries regarding, or permit the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry relating to the Company or any of its Subsidiaries (other than the Excluded Entities) or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Proposal or Acquisition Inquiry relating to the Company or any of the Acquired Companies, its Subsidiaries; (b) request or receive any non-public information from any Person or provide any access to the books, records or personnel of any of the Acquired Companies, non-public information to any Person in connection with or in response to an Acquisition Proposal or an inquiry Acquisition Inquiry relating to the Company or indication any of interest that could reasonably be expected to lead to an Acquisition Proposal, its Subsidiaries (iiiother than the Excluded Entities); (c) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, Proposal or Acquisition Inquiry relating to the Company or any of its Subsidiaries (ivother than the Excluded Entities); (d) approve, endorse or recommend any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities); or (ve) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise providing for any Acquisition Transaction or any Acquisition Proposal relating to the Company or any Acquisition Transactionof its Subsidiaries (other than the Excluded Entities). Without limiting the generality of the foregoing, it is agreed the Company acknowledges and agrees that any violation action taken by its representatives that, if taken by the Company would constitute a breach of the restrictions set forth in this Section 6.3(a) 8.2, shall be deemed to constitute a breach of this Section 8.2 by any Representative of any of the Acquired Companies, Company (whether or not such Person representative is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Business Combination Agreement (Boulevard Acquisition Corp. Ii), Business Combination Agreement (Boulevard Acquisition Corp. Ii)
No Solicitation. (a) During the Pre-Closing PeriodThe Company and its Subsidiaries will not, and will use their best efforts to cause their respective officers, directors, employees and investment bankers, attorneys or other agents retained by or acting on behalf of the Company shall notor any of its Subsidiaries not to, (i) initiate, solicit or encourage, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation making of any proposal that constitutes or announcement of is reasonably likely to lead to any Acquisition Proposal (as defined in Section 5.5(c) hereof), (ii) except as permitted below, engage in negotiations or take discussions with, or furnish any action that could reasonably be expected information or data to lead any third party relating to an Acquisition Proposal, or (iiiii) furnish except as permitted below, enter into any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, agreement with respect to any Person in connection with or in response to an Acquisition Proposal or approve any Acquisition Proposal. Notwithstanding anything to the contrary contained in this Section 5.5 or in any other provision of this Agreement, the Company and its Board of Directors (i) may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with or furnish information to any third party making an inquiry unsolicited Acquisition Proposal (a "Potential Acquiror") or indication approve an unsolicited Acquisition Proposal if the Company's Board of interest Directors is advised by its financial advisor that could such Potential Acquiror has the financial wherewith- 40 42 al to be reasonably be expected to lead to capable of consummating such an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if either (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines in good faith, after consultation with receiving advice from its financial advisor, that such third party has submitted to the Company’s Company an Acquisition Proposal which is a Superior Proposal, or (B) the Special Committee’s Board determines in good faith, based upon advice of its outside legal counsel, that the failure to participate in such discussions or negotiations or to furnish such information or approve an Acquisition Proposal would violate the Board's fiduciary duties under applicable law, and (ii) shall be permitted to (X) take and disclose to the Company's shareholders a position with respect to any tender or exchange offer by a third party, or amend or withdraw such position, pursuant to Rules 14d-9 and 14e-2 of the Exchange Act or (Y) make disclosure to the Company's shareholders, in the case of clause (X) or clause (Y) either (1) with respect to or as result of a Superior Proposal, or (2) if the Company's Board of Directors determines in good faith, based upon advice of its outside legal counsel, that the failure to take such action would violate such Board's fiduciary duties under, or otherwise violate, applicable law. The Company agrees that any non-public information furnished to a Potential Acquiror will be inconsistent with pursuant to a confidentiality agreement substantially similar to the confidentiality provisions of the confidentiality agreement entered into between the Company and Parent. In the event that the Company shall determine to provide any information as described above, or shall receive any Acquisition Proposal, it shall promptly inform Parent in writing as to the fact that information is to be provided and shall furnish to Parent the identity of the recipient of such information and/or the Potential Acquiror and the terms of such Acquisition Proposal, except to the extent that the Board determines in good faith, based upon advice of its outside legal counsel, that any such action described in this sentence would violate such Board's fiduciary obligations duties under, or otherwise violate, applicable law. The Company will keep Parent reasonably informed of the status (including amendments or proposed amendments) of any such Acquisition Proposal except to the extent that the Board determines in good faith, based upon advice of its outside legal counsel, that any such action would violate such Board's fiduciary duties under, or otherwise violate, applicable law.
(b) The Board of Directors of the Company shall not (i) withdraw or modify or propose to withdraw or modify, in any manner adverse to Parent, the approval or recommendation of such Board of Directors of this Agreement, the Offer or the Merger or (ii) approve or recommend, or propose to the Company’s shareholders under applicable Legal Requirementsapprove or recommend, any Acquisition Proposal unless, in each case, (CA) the Company Board or its Special Committee concludes determines in good faith, after consultation with receiving advice from its legal counsel and an independent financial advisor of nationally recognized reputationadvisor, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and or (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (iB) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) based upon advice of its outside legal counsel, that the failure to take such action would be inconsistent with the violate Board's fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedureslaw.
(dc) Until the earlier For purposes of this Agreement, "Acquisition Proposal" shall mean any bona fide proposal, whether in writing or otherwise, made by a third party to acquire beneficial ownership (as defined under Rule 13(d) of the Merger Effective Time and Exchange Act) of all or a material portion of the termination of this Agreement pursuant to Article XIassets of, or any material equity interest in, the Company shall immediately (i) cease and cause or its material Subsidiaries pursuant to be terminated any existing solicitationa merger, discussion, negotiation consolidation or other action conducted by business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or similar transaction involving the Company or its material Subsidiaries including, without limitation, any single or multi-step transaction or series of related transactions which is structured to permit such third party to acquire beneficial ownership of any material portion of the Acquired Companies assets of, or any of their respective Representatives with respect to any Acquisition Proposal effective as material portion of the date hereofequity interest in, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party the Company or its material Subsidiaries (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(atransactions contemplated by this Agreement).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Healthsource Inc), Merger Agreement (Cigna Corp)
No Solicitation. (a) During the Pre-Closing PeriodThe Company will not, and will cause any officers, directors, employees and investment bankers, attorneys or other agents retained by the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, any of its Representatives and the Representatives of the other Acquired Companies subsidiaries not to, directly or indirectly, (i) directly or indirectly solicit, initiateinitiate or knowingly encourage (including by way of furnishing non-public information), encourage, induce or take any other action knowingly to facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal (as hereinafter defined), or take (ii) except as permitted below, engage in negotiations or discussions with, or furnish any action information or data to any third party relating to, or that could may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal (other than the transactions contemplated hereby). Notwithstanding anything to the contrary contained in this Section 6.4 or an inquiry in any other provision of this Agreement, the Company, and its officers, directors, investment bankers, attorneys or indication of interest that could reasonably be expected to lead to an Acquisition Proposalagents, may: (iiii) engage in, continue or otherwise participate in any discussions or negotiations (including, as a part thereof, making any counterproposal) with or furnish information to any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any third party making an unsolicited Acquisition Proposal or (va "Potential Acquiror") enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if if: (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines in good faith, after consultation with ABN-AMRO or another financial advisor of nationally recognized standing, that such third party is reasonably likely to submit an Acquisition Proposal which is a Superior Proposal (as hereinafter defined), and (B) the Company’s or the Special Committee’s Company Board determines in good faith, based upon advice of outside legal counsel, that the failure to take participate in such action would discussions or negotiations or to furnish such information is reasonably likely to be inconsistent with the Company Board's fiduciary obligations duties under applicable law, or (ii) following receipt of an Acquisition Proposal, disclose to its shareholders the Company's position contemplated by Rules 14d-9 and 14e-2 under the Exchange Act or otherwise make any other necessary disclosure to its shareholders related to an Acquisition Proposal. The Company agrees that any non-public information furnished to a Potential Acquiror will be pursuant to a confidentiality agreement substantially similar to the confidentiality provisions of the confidentiality agreement entered into between the Company and Acquiror. In the event that the Company shall receive any Acquisition Proposal, it shall promptly inform Acquiror in writing as to the terms of such Acquisition Proposal, and if the Acquisition Proposal is in writing the Company shall provide the Acquiror a true and complete copy thereof, and will keep Acquiror reasonably informed of the status (including amendments or proposed amendments) of any such Acquisition Proposal, except to the extent that the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes determines in good faith, after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputationcounsel, that any such Acquisition action with respect to a Superior Proposal that by its terms expressly prohibits any disclosure of the terms of such Superior Proposal and described in this sentence is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the be inconsistent with Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentBoard's fiduciary duties under applicable law.
(b) From and after the execution For purposes of this Agreement, except "Acquisition Proposal" shall mean any bona fide proposal made by a third party to acquire (i) beneficial ownership (as defined under Rule 13(d) of the extent that doing so would result Exchange Act) of a 15% or greater equity interest in the Company pursuant to a breach merger, consolidation or other business combination, sale of its fiduciary dutiesshares of capital stock, each tender offer or exchange offer or similar transaction involving the Company including, without limitation, any single or multi-step transaction or series of related transactions which is structured in good faith to permit such third party to acquire beneficial ownership of a 15% or greater equity interest in the Company or (ii) all or a substantial part of the business or assets or any equity interest in, or voting securities of, of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition transactions contemplated by this Agreement). (c) The term "Superior Proposal) or any inquiry or request for discussions or negotiations regarding " shall mean any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board RecommendationBoard, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s (ABN-AMRO or the Special Committee’sanother financial advisor of nationally recognized standing, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect more favorable to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third such party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other its shareholders than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)transactions contemplated hereby.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Ameriwood Industries International Corp), Merger Agreement (Horizon Acquisition Inc)
No Solicitation. (a) During the Pre-Closing Period, the Company TSI and Eclipsys each shall not, directly or indirectly, and shall cause the other Acquired Companiesthrough any officer, its Representatives and the Representatives director, employee, financial advisor, representative or agent of the other Acquired Companies not to, directly or indirectly, such party (i) solicit, initiate, encourage, induce initiate or facilitate encourage any inquiries regardingor proposals that constitute, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets, sale of shares of capital stock (including without limitation by way of a tender offer) or similar transaction involving such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement and other than, in the case of Eclipsys, transactions constituting Eclipsys Permitted Acquisitions (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) furnish any nonpublic information regarding any of the Acquired Companiesengage in negotiations or discussions concerning, or provide any access to the books, records or personnel of any of the Acquired Companies, non-public information to any Person in connection with person or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect entity relating to, any Acquisition Proposal, or (iviii) approve, endorse agree to or recommend any Acquisition Proposal or (v) enter into any letter of intentProposal; provided, arrangementhowever, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing contained in this Agreement shall prevent TSI or Eclipsys, or their respective Boards of Directors, from (including this Section 6.3(a)A) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic non-public information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person person or entity in response to a connection with an unsolicited bona fide written Acquisition Proposal that is submitted by such person or entity or recommending an unsolicited bona fide written Acquisition Proposal by such person or entity or recommending an unsolicited bona fide written Acquisition Proposal to the Company by stockholders of such Person during such period party, if and only to the extent that (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B1) the Company Board or its Special Committee concludes of Directors of such party believes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, faith (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, advisor) that such Acquisition Proposal is reasonably likely capable of being completed on the terms proposed and, after taking into account, among other relevant factors, the strategic benefits anticipated to lead be derived from the Merger and the long-term prospects of TSI and Eclipsys as a combined company, would, if consummated, result in a transaction more favorable to the stockholders of such party than the transactions contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal Proposal") and the Board of Directors of such party determines in good faith after consultation with outside legal counsel that such action is necessary for such Board of Directors to comply with its fiduciary duties to stockholders under applicable law and (D2) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within fortynon-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish public information to, or enter entering into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as person or entity, such Board of Directors receives from such person or entity an executed confidentiality agreement with terms no less favorable to any material developments such party than those contained in that certain letter agreement dated October 2, 1998 between TSI and Eclipsys regarding any such the confidentiality of certain materials (the "Confidentiality Agreement"); or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(cb) The Company Board TSI and Eclipsys shall each notify the Special Committee may not other party immediately after receipt by TSI or Eclipsys (ior their advisors) withdraw, qualify of any Acquisition Proposal or modify, any request for non-public information in a manner adverse connection with an Acquisition Proposal or for access to the Buyer Partiesproperties, books or records of such party by any person or entity that informs such party that it is considering making, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommendhas made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, (iii) authorize inquiry or permit contact. Such party shall continue to keep the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit other party hereto informed, on a current basis, of the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by status of any such Person, which Person discussions or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote negotiations and the termination of this Agreement pursuant to Article XI, the Company Board terms being discussed or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresnegotiated.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Eclipsys Corp), Merger Agreement (Transition Systems Inc)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, directly or indirectly, and shall cause the other Acquired Companiesthrough any officer, its Representatives and the Representatives director, employee, representative or agent of the other Acquired Companies not to, directly Company or indirectlyany of its subsidiaries, (i) solicit, initiate, encourage, induce initiate or facilitate encourage the initiation of any inquiries regardingor proposals regarding any merger, sale of substantial assets, sale of shares of capital stock (including without limitation by way of a tender offer, but not in connection with Permitted Acquisitions) or similar transactions involving the making, submission, reaffirmation Company or announcement any subsidiaries of the Company other than the Merger (any Acquisition Proposal of the foregoing inquiries or take any action that could reasonably be expected proposals being referred to lead to herein as an "Acquisition Proposal"), (ii) furnish any nonpublic information regarding any of the Acquired Companiesengage in negotiations or discussions concerning, or provide any access to the books, records or personnel of any of the Acquired Companies, nonpublic information to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect person relating to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (viii) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle agree to approve or similar document or any Contract contemplating or otherwise relating to recommend any Acquisition TransactionProposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth Nothing contained in this Section 6.3(a5.2(a) by any Representative shall prevent the Board of any Directors of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding considering, negotiating, approving and recommending to the Acquired Companies stockholders of the Company, or taking the actions permitted by Section 5.2(c) with respect to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to not solicited in violation of this Agreement, provided the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative Board of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations Directors of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes determines in good faith, after consultation with faith (upon written advice of independent counsel) that it is required to do so in order to discharge properly its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parentfiduciary duties.
(b) From and The Company shall immediately notify Parent after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, or any indication modification of or amendment to any Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any Person person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making making, or has made, an Acquisition Proposal, any request for information relating . Such notice to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent shall be made orally and in writing of (i) writing, and shall indicate whether the receipt, directly Company is providing or indirectly, of any such inquiries, negotiations or proposals relating intends to any provide the person making the Acquisition Proposal by with access to information concerning the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not Company as provided in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to ParentSection 5.2(c).
(c) The If the Board of Directors of the Company Board receives a request for material nonpublic information by a person who makes a bona fide Acquisition Proposal, and the Special Committee may not (iBoard of Directors determines in good faith and upon the written advice of independent counsel that it is required to cause the Company to act as provided in this Section 5.2(c) withdrawin order to discharge properly the directors' fiduciary duties, qualify or modifythen, in provided the person making the Acquisition Proposal has executed a manner adverse confidentiality agreement similar to the Buyer Parties, or fail to makeone then in effect between the Company and Parent, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company may provide such person with access to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to information regarding the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the The Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions or negotiations with any person (other action than Parent and Acquisition) conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished foregoing. The Company agrees not to release any third party be returned promptly and (iii) deny access from the confidentiality provisions of any confidentiality agreement to any data room containing any such information to any third party (other than which the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Company is a party.
(e) The Company agrees not to release or permit shall ensure that the release of any Person fromofficers, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any directors and employees of the Acquired Companies is a party, Company and will use its reasonable best efforts to enforce subsidiaries and any investment banker or cause to be enforced each such agreement at other advisor or representative retained by the request Company are aware of Parentthe restrictions described in this Section 5.2.
Appears in 2 contracts
Sources: Merger Agreement (Laidlaw Inc), Merger Agreement (American Medical Response Inc)
No Solicitation. (a) During The Company and its Subsidiaries shall, and shall direct their respective Representatives to, immediately cease and cause to be terminated, and shall not authorize or knowingly permit any of the Pre-Closing PeriodCompany’s or its Subsidiaries’ Representatives to continue, any and all existing activities, discussions or negotiations with any Third Party conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly (and in any event within three (3) Business Days following the date hereof) request in writing that each Third Party that has executed a confidentiality agreement since the date which is one year prior to the date of this Agreement in connection with its consideration of acquiring the Company or any material portion thereof return all confidential information heretofore furnished to such Third Party by or on behalf of the Company, and the Company shall use its reasonable best efforts to have such information returned or destroyed (to the extent destruction of such information is permitted by such confidentiality agreement).
(b) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries shall not, directly or indirectly, not (and shall cause the other Acquired Companies, its not authorize or knowingly permit any of their Representatives and the Representatives of the other Acquired Companies not to), directly or indirectly, (i) solicit, initiate, or knowingly encourage, facilitate or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any an Acquisition Proposal or take the making of any action inquiry, offer or proposal that could would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish to any nonpublic Third Party any non-public information regarding relating to the Company or any of its Subsidiaries for the Acquired Companies, purpose of assisting or provide any access to facilitating the books, records or personnel making of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry any inquiry, offer or indication of interest proposal that could would reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in, continue or otherwise participate in any discussions or negotiations with respect to an Acquisition Proposal with any Person in respect of, Third Party that is seeking to make or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any has made an Acquisition Proposal or (viv) execute or enter into any letter of intent, arrangement, understanding, agreement, agreement in principle memorandum of understanding or similar document or any Contract contemplating or otherwise relating to an Acquisition Transaction (other than a confidentiality agreement pursuant to this Section 6.1(b)); provided, however, that notwithstanding the foregoing, prior to obtaining the Requisite Stockholder Approval, the Company Board may, directly or indirectly through any Representative, with respect to any Third Party that has made (and not withdrawn) a bona fide written Acquisition Proposal after the date of this Agreement that did not result from a breach of this Section 6.1 that the Company Board concludes in good faith (after consultation with its financial advisor and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal, (A) engage or participate in discussions or negotiations with such Third Party and its Representatives and/or (B) furnish to such Third Party and its Representatives any information (including non-public information) relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement (provided that such confidentiality agreement need not contain any “standstill” or similar provision that would prohibit such Third Party from making any Acquisition Transaction. Proposal) and containing additional provisions that expressly permit the Company to comply with the terms of this Section 6.1 (which confidentiality agreement shall be provided to Parent for informational purposes immediately following the execution and delivery thereof), provided that in the case of any action taken pursuant to the foregoing clauses (A) or (B), (1) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be likely to constitute a breach of its fiduciary duties to stockholders of the Company under Delaware Law, (2) solely with respect to the initial contact with respect to any Third Party, at least twenty-four (24) hours prior to engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Third Party, the Company shall have provided the notice required by Section 6.1(d) (and if such Acquisition Proposal is in written form, the Company shall give Parent a copy thereof) and notice of the Company’s intention to engage or participate in discussions or negotiations with, or furnish non-public information to, such Third Party and (3) contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such information has not been previously furnished or made available by the Company to Parent or any of its Representatives).
(c) Without limiting the generality of the foregoing, it is agreed Parent, Merger Sub and the Company acknowledge and hereby agree that any violation action taken by any Representative of the Company or any of its Subsidiaries that would be a breach of the restrictions set forth in this Section 6.3(a) 6.1 if taken by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, Company shall be deemed to be a breach of this Section 6.3(a6.1 by the Company for all purposes of and under this Agreement; provided, however, that any such action taken by any Representative of the Company or any of its Subsidiaries (other than any member of the Company Board, the Company Board’s financial advisor or outside legal counsel or any Senior Member of Management) shall not be deemed to be a breach of this Section 6.1 by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption unless such action was authorized, directed or knowingly permitted by any member of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations any Senior Member of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentManagement.
(bd) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the The Company Parties shall promptly, and in any event all cases within fortytwenty-eight four (4824) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereofits receipt, advise Parent orally and in writing of (i) the receipt, directly or indirectly, its receipt of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, or any request for information or inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information respect to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information reasonably be expected to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommendlead to, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to terms and conditions of, and identity of the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary hereingroup making, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XIsuch Acquisition Proposal, the Company Board request or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)inquiry.
(e) The Company agrees not to release shall keep Parent promptly informed of the status and material terms and conditions (including all material amendments or permit the release proposed amendments) of any Person fromsuch Acquisition Proposal, request or inquiry and, promptly upon receipt of any written material amendment or written proposed amendment of any such Acquisition Proposal, the Company shall give Parent a copy thereof. In addition to the foregoing, the Company shall provide Parent with written notice at least seventy-two (72) hours (or such shorter period as may be provided to the members of the Company Board) in advance of a meeting of the Company Board at which the Company Board is reasonably expected to consider an Acquisition Proposal, an inquiry relating to a potential Acquisition Proposal, or a request to waive or permit the waiver of provide non-public information to any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentPerson.
Appears in 2 contracts
Sources: Merger Agreement (Microchip Technology Inc), Merger Agreement (Standard Microsystems Corp)
No Solicitation. (a) During From the Pre-Closing Perioddate hereof until the earlier of the First Merger Effective Time and the termination of this Agreement in accordance with its terms, the Company shall not, directly or indirectlyshall cause its Subsidiaries and the respective officers, directors, financial advisers, attorneys and accountants of the Company Entities to not, and shall cause use its reasonable best efforts to ensure that the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not toCompany Entities do not, in each case, directly or indirectly, :
(i) solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal with respect to the Company or take any action that could reasonably be expected Acquisition Inquiry with respect to lead to an Acquisition Proposal, the Company;
(ii) furnish any nonpublic information regarding any of the Acquired Companiesregarding, or provide afford any Person access to to, the booksbusiness, properties, assets, books or records or personnel of any of the Acquired Companies, Company Entities to any Person in connection with or in response to an Acquisition Proposal with respect to the Company or an inquiry or indication of interest that could reasonably be expected Acquisition Inquiry with respect to lead to an Acquisition Proposal, the Company;
(iii) engage in, continue or otherwise participate in any discussions (except to disclose to such Person the existence of this Section 4.4) or negotiations with any Person in respect of, or otherwise cooperate relating to any Acquisition Proposal with respect to, any to the Company or Acquisition Proposal, Inquiry with respect to the Company;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to the Company or Acquisition Inquiry with respect to the Company or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting Transaction with respect to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing; provided, from the date hereof and however, that prior to the adoption of this Agreement by the Required Company Shareholder Stockholder Vote, nothing in neither this Section 4.4(a) nor any other provision of this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), shall prohibit the Company from furnishing nonpublic any information regarding regarding, or affording any Person access to the Acquired Companies business, properties, assets, books or records of any of the Company Entities to, or entering into or conducting engaging in discussions or and negotiations with, with any Person (it being understood that clause “(i)” above shall not prohibit discussions and negotiations otherwise permitted by this proviso) in response to a bona fide written an Acquisition Proposal with respect to the Company that is submitted to the Company by such Person during such period after the date hereof (and not withdrawn) which is that the Company Board concludes in good faith, after consulting with its outside legal counsel and financial advisors, could reasonably likely be expected to result in a Company Superior Proposal if Offer if: (A) neither the Company nor such Acquisition Proposal did not result from any Representative material breach of any of the Acquired Companies shall have breached or violated provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal, 4.4 or Section 5.2(b); (B) the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s or the Special Committee’s its outside legal counsel, that failure to take such action would could reasonably be inconsistent with expected to constitute a breach of the fiduciary obligations duties of the Company Board to the Company’s shareholders under applicable Legal Requirements, ; (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) at least one Business Day prior to furnishing any such nonpublic information to or public access to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information or access to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing (x) customary limitations on non-solicitation provisions and (y) other provisions (including nondisclosure provisions and use restrictions) that are at least as favorable to the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement, which confidentiality agreement shall not include any provisions that would prevent or restrict the Company and customary or the Company’s Representatives from providing any information to Parent to which Parent would be entitled under any provision of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions. As promptly as reasonably practicable following ); and (D) substantially concurrently with the furnishing of any such nonpublic information pursuant to this Section 6.3(a)such Person, the Company shall provide furnishes such nonpublic information to Parent any (to the extent such nonpublic information concerning any of has not been previously furnished by the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided Company to Parent).
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to hereof until the earlier of the Required Company Stockholder Vote First Merger Effective Time and the termination of this Agreement pursuant to Article XIin accordance with its terms, Parent shall not, shall cause its Subsidiaries and the Company Board or its Special Committee may take one or more respective officers, directors, financial advisers, attorneys and accountants of the actions described Parent Entities to not, and shall use its reasonable best efforts to ensure that the other Representatives of the Parent Entities do not, in the preceding clauses each case, directly or indirectly:
(i) – solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to Parent or Acquisition Inquiry with respect to Parent;
(ii) furnish any information regarding, or afford any Person access to, the business, properties, assets, books or records of any of the Parent Entities to any Person in connection with or in response to an Acquisition Proposal with respect to Parent or Acquisition Inquiry with respect to Parent;
(iii) engage in discussions (except to disclose to such Person the existence of this Section 4.4) or negotiations with any Person relating to any Acquisition Proposal with respect to Parent or Acquisition Inquiry with respect to Parent;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to Parent or Acquisition Inquiry with respect to Parent or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL or waive the applicability of Section 203 of the DGCL with respect to any Person or group; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to Parent; provided, however, that prior to the approval of the Parent Share Issuance by the Required Parent Stockholder Vote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing any information regarding, or affording any Person access to the business, properties, assets, books or records of any of the Parent Entities to, or engaging in discussions and negotiations with any Person (it being understood that clause “(i)” above shall not prohibit discussions and negotiations otherwise permitted by this proviso) in response to a Superior an Acquisition Proposal if with respect to Parent that is submitted to Parent by such Person after the Company date hereof (and not withdrawn) that the Parent Board or its Special Committee concludes in good faith, after consultation consulting with its outside legal counsel and financial advisors, could reasonably be expected to result in a Parent Superior Offer if: (A) such Acquisition Proposal did not result from any material breach of any of the Company’s provisions set forth in this Section 4.4 or Section 5.3(b); (or B) the Special Committee’sParent Board concludes in good faith, as applicable) after having consulted with its outside legal counsel, that failure to take such action would could reasonably be inconsistent with expected to constitute a breach of the fiduciary obligations duties of the Company Parent Board to the Company’s shareholders under applicable Legal Requirements; (C) at least one Business Day prior to furnishing any such nonpublic information or public access to, but only or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information or access to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing (x) customary non-solicitation provisions and (y) other provisions (including nondisclosure provisions and use restrictions) that are at least as favorable to Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement, which confidentiality agreement shall not include any provisions that would prevent or restrict Parent or Parent’s Representatives from providing any information to the Company to which the Company would be entitled under any provision of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (D) substantially concurrently with the furnishing of any such nonpublic information to such Person, Parent furnishes such nonpublic information to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company).
(c) Each of Parent and the Company shall promptly (and in no event later than 24 hours after following receipt of any Acquisition Proposal with respect to the Superior Company or Parent, as the case may be, or Acquisition Inquiry with respect to the Company or Parent, as the case may be) advise the other Party to this Agreement in writing of any such Acquisition Proposal Termination Proceduresor Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such Party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period (including copies of any written offer). Each Party receiving an Acquisition Proposal or Acquisition Inquiry with respect to such Party, as the case may, be shall keep the other Party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Until the earlier Each of the Merger Effective Time Parent and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any discussions existing solicitation, discussion, negotiation or other action conducted by as of the date of this Agreement between any of the Acquired Companies Parent Entities or any of their respective Representatives with respect Representatives, or any of the Company Entities or any of their Representatives, and any other Person that relate to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject or Acquisition Inquiry with respect to the Company’s rights and obligations in Section 6.3(a)Company or Parent, as the case may be.
(e) The Each of Parent and the Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which any such Party or any of the Acquired Companies its Subsidiaries is a partyParty or under which any such Party or any of its Subsidiaries has any rights, and will use its reasonable best efforts to enforce or cause each such agreement to be enforced each such agreement in accordance with its terms at the request of Parentthe other Party to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)
No Solicitation. From and after the date hereof until the Expiration Date, each Stockholder shall not (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage, induce or facilitate any inquiries regardingthe communication, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry regarding the Company or take any action that could reasonably be expected to lead to an Acquisition ProposalProposal or Acquisition Inquiry regarding the Company, (iib) furnish any nonpublic non-public information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Company to any Person in connection with or in response to an Acquisition Proposal or an inquiry Acquisition Inquiry regarding the Company, (c) engage in discussions or indication negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry regarding the Company (other than to inform any Person of interest the existence of the provisions in this Section 7), (d) approve, endorse or recommend any Acquisition Proposal (subject to Section 6.2 of the Merger Agreement), (e) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction regarding the Company (subject to Section 5.4 of the Merger Agreement), (f) take any action that could reasonably be expected to lead to an Acquisition ProposalProposal or Acquisition Inquiry, (iiig) engage in, continue initiate a stockholders’ vote or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter action by consent of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure stockholders with respect to take such action would be inconsistent with the fiduciary obligations of the Company Board to an Acquisition Proposal regarding the Company’s shareholders under applicable Legal Requirements, (Ch) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person except by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution reason of this Agreement, except to the extent that doing so would result become a member of a “group” (as such term is defined in a breach of its fiduciary duties, each Section 13(d) of the Company Parties shall promptly, and in any event within forty-eight (48Exchange Act) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any voting securities of the Company that takes any action in support of an Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to regarding the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or (i) propose or agree to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which do any of the Acquired Companies foregoing. In the event that such Stockholder is a partycorporation, and will use partnership, trust or other Entity, it shall not permit any of its reasonable best efforts to enforce Subsidiaries or cause to be enforced each Affiliates to, nor shall it authorize any officer, director or representative of such agreement at Stockholder, or any of its Subsidiaries or Affiliates to, undertake any of the request of Parentactions contemplated by this Section 7.
Appears in 2 contracts
Sources: Merger Agreement (Talaris Therapeutics, Inc.), Support Agreement (Talaris Therapeutics, Inc.)
No Solicitation. (a) During From the Pre-Closing Perioddate hereof until the Acceptance Date or the earlier termination of this Agreement in accordance with its terms, the Company shall notagrees that neither it nor any of its Subsidiaries, nor any of their respective officers, directors or employees, will, and that it will use its reasonable best efforts to cause its and their respective other Representatives not to (and will not authorize or give permission to its and their respective Representatives to), directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (i) solicit, initiate, encourage, induce seek or facilitate any inquiries regarding, or knowingly encourage the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise engage or participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 5.8(e), approve, endorse or recommend any Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 5.8(e), enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise understanding relating to any Acquisition Transaction. Without limiting the foregoingProposal; provided, it is agreed however, that any violation of the restrictions set forth in this Section 6.3(a5.8(a) by will not prohibit (A) the Company Board or any Representative of committee thereof, directly or indirectly through any of the Acquired Companiesofficer, whether employee or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwiseRepresentative, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder VoteAcceptance Date, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies Company or any of its Subsidiaries to, or entering into or conducting participating in discussions or negotiations with, any Person in response to a an unsolicited, bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (Board or any committee thereof concludes in good faith, after consultation with outside legal counsel and not withdrawn) which is a financial advisor, constitutes or would reasonably likely be expected to result in a Superior Proposal if (A1) neither the Company nor Board thereof concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Acquisition Proposal would be reasonably likely to result in a breach of its fiduciary duties under applicable law, (2) such Acquisition Proposal did not result from a breach of this Section 5.8, (3) prior thereto the Company has given Parent the notice required by Section 5.8(b), and (4) the Company furnishes any Representative nonpublic information provided to the maker of the Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such Person containing customary terms and conditions that in the aggregate are not materially less restrictive than those contained in the Confidentiality Agreement or (B) the Company from complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to any Acquisition Proposal, including any so called “stop, look and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, that the failure of the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable law; provided that the Company Board may make a Company Change of Recommendation only in accordance with Section 5.8(e).
(b) The Company will promptly, and in no event later than 24 hours after its receipt of any Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal, advise Parent orally and in writing of such Acquisition Proposal or request (including providing the identity of the Person making or submitting such Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Acquisition Proposal and any related draft agreements and (ii) if oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing Date). The Company will keep Parent informed on a prompt basis with respect to any change to the material terms of any such Acquisition Proposal (and in no event later than 24 hours following any such change), including providing Parent with a copy of any draft agreements and modifications thereof.
(c) Upon the execution of this Agreement, the Company will, and will cause its Subsidiaries and its and their respective officers, directors and employees, and will use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations between the Company or any of its Subsidiaries or any of their respective Representatives and any Person that relate to any Acquisition Proposal and use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons with respect thereto within 12 months prior to the date hereof (to the extent that the Company has the right to cause such Persons to return or destroy such confidential information under a confidentiality agreement (or other similar agreement) with such Persons).
(d) Except as otherwise provided in Section 5.8(e), the Company Board (or any committee thereof) may not (i) withhold, withdraw or modify, or publicly propose to withhold, withdraw or modify, the Company Board Recommendation in a manner adverse to Parent or make any statement, filing or release, in connection with obtaining the Company Stockholder Approval or otherwise, inconsistent with the Company Board Recommendation, (ii) approve, endorse or recommend any Acquisition Proposal (any of the Acquired Companies shall have foregoing set forth in clauses (i) and (ii), a “Company Change of Recommendation”), or (iii) enter into a written agreement providing for an Acquisition Proposal.
(e) The Company Board may at any time prior to the earlier of the Acceptance Date or receipt of the Company Stockholder Approval (i) effect a Company Change of Recommendation in respect of an Acquisition Proposal or (ii) if it elects to do so in connection with or following a Company Change of Recommendation, terminate this Agreement pursuant to Section 8.1(f) in order to enter into a definitive written agreement providing for an Acquisition Proposal, if and only if: (A) an Acquisition Proposal is made to the Company by a third party, such offer is not withdrawn and the Company has not breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal5.8, (B) the Company Board or any committee thereof determines in good faith after consultation with outside legal counsel and a financial advisor that such offer constitutes a Superior Proposal, (C) following consultation with outside legal counsel, the Company Board or any committee thereof determines that failure to take such action would be reasonably likely to result in a breach of its Special Committee concludes fiduciary duties under applicable law, (D) the Company provides Parent three Business Days’ prior written notice of its intention to take such action (such three-Business Day period, the “Notice Period”), which notice will include the information with respect to such Superior Proposal that is specified in Section 5.8(b) (it being understood that any material revision or amendment to the terms of such Superior Proposal will require a new notice and, in such case, all references to three Business Days in this Section 5.8(e) will be deemed to be two Business Days), (E) at the end of the Notice Period described in clause (D), the Company Board again makes the determination in good faith after consultation with outside legal counsel and a financial advisor (after negotiating in good faith with Parent and its Representatives if requested by Parent during the Notice Period regarding any adjustments or modifications to the terms of this Agreement proposed by Parent and taking into account any such adjustments or modifications) that the Acquisition Proposal continues to be a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable law, and (F) the Company has paid the Company Termination Fee in accordance with Section 8.3.
(f) During the period from the date of this Agreement through the Effective Time, neither the Company nor any of its Subsidiaries may terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving the Company or any standstill agreement to which it is a party unless the Company Board or any committee thereof determines in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the reasonably likely to result in a breach of its fiduciary obligations of duties under applicable law. During such period, the Company Board or its Subsidiaries, as the case may be, will enforce, to the Company’s shareholders fullest extent permitted under applicable Legal Requirementslaw, (C) the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Company Board or its Special Committee concludes any committee thereof determines in good faith, after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputationcounsel, that taking such Acquisition Proposal is action would be reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedureslaw.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Transaction Agreement (Online Resources Corp), Transaction Agreement (Aci Worldwide, Inc.)
No Solicitation. (a) During The Company agrees that, prior to the Pre-Closing PeriodEffective Time, the Company it shall not, and shall not authorize or permit any Company Subsidiaries or any of their Representatives, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) to solicit, initiate, encourage, induce initiate or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in encourage any discussions or negotiations inquiries or the making of any proposal with respect to any merger, consolidation or other business combination involving the Company or the Company Subsidiaries or acquisition of 10% or more of the assets or capital stock of the Company and the Company Subsidiaries taken as a whole (a "TAKEOVER PROPOSAL") or negotiate, explore or otherwise engage in substantive discussions with any Person in respect of, or otherwise cooperate (other than Buyers) with respect to, to any Acquisition Proposal, Takeover Proposal (ivit being understood that the passive receipt of communications from third parties shall not be deemed participation in discussions or negotiations) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle arrangement or similar document understanding requiring it to abandon, terminate or any Contract contemplating or otherwise relating fail to any Acquisition Transaction. Without limiting consummate the foregoingMerger; PROVIDED, it is agreed HOWEVER, that any violation if the Board of Directors of the restrictions set forth in this Section 6.3(a) by any Representative of any of Company and the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determine in good faith, after consultation with the Company’s or the Special Committee’s independent outside legal counsel, that failure prior to obtaining the Requisite Company Vote, it is necessary to do so in order to act in a manner consistent with its fiduciary duties to the Company's stockholders under applicable law, the Company may, prior to obtaining the Requisite Company Vote, in response to a Takeover Proposal, which proposal is supported by fully committed financing, was not solicited by it and which did not otherwise result from a breach of this Section 5.8, and subject to providing prior written notice of its decision to take such action would be inconsistent to Buyers and compliance with the fiduciary obligations other requirements of the Company Board to the Company’s shareholders under applicable Legal Requirementsthis Section 5.8, (Ci) the Company Board or its Special Committee concludes in good faith, after consultation furnish information with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely respect to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information Company Subsidiaries to any Person making such Takeover Proposal pursuant to this Section 6.3(a), a customary confidentiality agreement (as determined in good faith by the Company shall provide to Parent any nonpublic information concerning any based on the advice of the Acquired Companies that is furnished to any third Person its independent outside legal counsel) and (ii) participate in discussions or its Representatives which was not previously provided to Parentnegotiations regarding such Takeover Proposal.
(b) From and after the execution Except in connection with a Superior Proposal, provided that there has been no violation of this AgreementSection 5.8, except to neither the extent that doing so would result in a breach Board of its fiduciary duties, each Directors of the Company Parties nor any committee thereof shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly withdraw or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information tomodify, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as propose publicly to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify withdraw or modify, in a manner adverse to the Buyer Parties, or fail to makeBuyers, the approval or recommendation by the Board of Directors of the Company Board Recommendationor such committee of this Agreement, (ii) approve, authorize approve or recommend, or propose publicly or approve, authorize to approve or recommend, an Acquisition any Takeover Proposal, or (iii) authorize or permit cause the Company to enter into any agreement (an “Acquisition Agreement”.
(c) contemplating an Acquisition The Company shall promptly advise Buyers orally and in writing of any request for information of the type referred to in Section 5.8(a) or of any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal and the identity of the Person making such request or (iv) permit Takeover Proposal. The Company will keep Buyers informed of the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions status and details (including the Ownership Limitationamendments or proposed amendments) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by of any such Person, which Person request or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresTakeover Proposal.
(d) Until Nothing contained in this Section 5.8 shall prohibit the earlier 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 disclosure to the Company's stockholders if, in the good faith judgment of the Merger Effective Time Board of Directors of the Company, after consultation with independent outside legal counsel and based as to legal matters on the termination written advice of this Agreement pursuant the Company's independent outside legal consent, failure so to Article XIdisclose would be inconsistent with its obligations under applicable law; PROVIDED, HOWEVER, that, except as contemplated by Section 5.8(b), neither the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any nor the Board of Directors of the Acquired Companies Company nor any committee thereof shall withdraw or any of their respective Representatives modify, or propose publicly to withdraw or modify, its position with respect to any Acquisition Proposal effective as of this Agreement, the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release Offer or permit the release of any Person fromMerger, or approve or recommend, or propose publicly to waive approve or permit the waiver of any provision ofrecommend, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentTakeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Three Cities Fund Ii Lp), Agreement and Plan of Merger (Three Cities Fund Ii Lp)
No Solicitation. (a) During the Pre-Closing Period, the Company Seller shall not, directly or indirectly, not nor shall it authorize (and shall cause the use its best efforts not to permit) any Affiliate, officer, director, manager or employee of, or any investment banker, attorney or other Acquired Companiesadvisor or representative (collectively, its Representatives and the Representatives "REPRESENTATIVES") of the other Acquired Companies not to, directly or indirectly, Seller to (i) solicit, initiate, encourage, induce solicit or facilitate initiate any inquiries regardingrelating to, or the makingsubmission of, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any non-public information or data with respect to or provide access to the properties of Seller, or take any other action in order to facilitate the making of any proposal that constitutes an Acquisition Proposal or (iviii) approveenter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, endorse that notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.04 or any other provision hereof shall prohibit Seller or Seller's board of directors from taking and disclosing to Seller'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, provided that Seller may not, except as permitted by Section 5.04(b), withdraw or modify, or propose to withdraw or modify, the Seller Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal Proposal, or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating with respect to any Acquisition TransactionProposal. Without limiting the foregoingUpon execution of this Agreement, it is agreed that Seller will immediately cease any violation of the restrictions set forth in this Section 6.3(a) by existing activities, discussions or negotiations with any Representative of Person conducted heretofore with respect to any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Companyforegoing. Notwithstanding the foregoing, from the date hereof and prior to the adoption Closing Date, Seller may furnish nonpublic information or data concerning, or provide access to, its businesses, properties or assets to any Person or "group" (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group concerning an Acquisition Proposal, provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of this Agreement by which shall be no more favorable to such third party than those provided for in the Required Company Shareholder Vote, nothing in this Confidentiality Agreement (including provided that such confidentiality agreement must permit Seller to disclose to Parent all of the information required to be disclosed by Seller to Parent by this Section 6.3(a)5.04) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, if:
(i) such Person or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written group has submitted an Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is Board has determined in good faith is, or would reasonably likely be expected to result in in, a Superior Proposal if (Aas defined below);
(ii) neither the Company nor any Representative Seller's board of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes directors has determined in good faith, after consultation with the Company’s or the Special Committee’s outside legal counselcounsel to Seller, that failure to take such action would be inconsistent with is required to discharge the board's fiduciary obligations duties to Seller's stockholders under applicable Law; and
(iii) Seller has notified Parent in writing of its intention to engage in such discussions or negotiations or to provide such confidential information not less than the third (3rd) Business Day prior to so doing. Seller will promptly (but in no case later than twenty-four (24) hours after receipt thereof) notify Parent in writing of the Company Board existence of any proposal, discussion, negotiation or inquiry received by Seller regarding any Acquisition Proposal, and Seller will promptly (but in no case later than twenty-four (24) hours after receipt thereof) communicate to Parent the Company’s shareholders under applicable Legal Requirementsterms of any proposal, discussion, negotiation or inquiry which it may receive regarding any Acquisition Proposal (Cand will promptly provide to Parent copies of any written materials (including e-mails) the Company Board received by Seller or its Special Committee concludes Representatives in good faithconnection with such proposal, after consultation with its legal counsel discussion, negotiation or inquiry) and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf identity of the Company and customary “standstill” provisionsparty making such proposal or inquiry or engaging in such discussion or negotiation. As Seller will promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic non-public information concerning any of the Acquired Companies that is furnished Seller provided to any third other Person or its Representatives in connection with any Acquisition Proposal which was not previously provided to Parent. Seller will, when reasonably requested by Parent, keep Parent informed on a prompt basis of the status and details of any such Acquisition Proposal and of any amendments or proposed amendments to any Acquisition Proposal and of the status of any discussions or negotiations relating to any Acquisition Proposal.
(b) From and after Except as set forth in this Section 5.04(b), neither the execution board of this Agreement, except to the extent that doing so would result in a breach directors of its fiduciary duties, each of the Company Parties Seller nor any committee thereof shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly withdraw or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information tomodify, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as propose to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify withdraw or modify, in a manner adverse to the Buyer Parties, Parent or fail to makeAcquisition Sub, the Company Seller Board Recommendation, (ii) approve, authorize approve or recommend, or propose publicly or approve, authorize to approve or recommend, an any Acquisition Proposal, Proposal or (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as (other than a confidentiality agreement entered into in accordance with Section 5.04(a)). Notwithstanding the foregoing, subject to compliance with the provisions of this Section 5.04, prior to the Closing Date, Seller's board of directors, after consultation with outside legal counsel, may withdraw or modify the Seller Board Recommendation, approve or recommend a Superior Proposal, or propose to enter into or enter into an agreement with respect to a Superior Proposal, if the board determines in good faith after consultation with outside legal counsel that, such action would otherwise be required to discharge the board's fiduciary duties to Seller's stockholders under applicable Law in the absence of the date hereoflimitations on such action under this Agreement, provided that in each case, Seller has given Parent written notice at least three (3) Business Days in advance of such action that the board of directors of Seller has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal. Notwithstanding any provision of this Agreement, the board of directors of Seller shall not be prohibited from making any disclosure that, in the good faith judgment of the board (made after consultation with outside legal counsel), is necessary to satisfy its fiduciary duty of disclosure.
(c) Nothing in this Section 5.04, and no action taken by the board of directors of Seller pursuant to this Section 5.04, will (i) permit Seller to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal for as long as this Agreement remains in effect, except as expressly set forth herein, or (ii) request that all confidential information previously furnished to affect in any third party be returned promptly and manner any other obligation of Seller under this Agreement.
(iiid) deny access to For purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any data room containing bona fide offer, proposal or other indication of interest regarding any such information to any third party of the following (other than the Buyer Parties and their respective Representativestransactions provided for in this Agreement involving Seller): (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving Seller; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or a significant portion of the assets or non-cash assets of Seller (other than the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Claim), taken as a whole, in each case, subject to a single transaction or series of related transactions; (iii) any purchase of or tender offer or exchange offer for ten percent (10%) percent or more of the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release outstanding shares of any Person fromcapital stock of Seller, or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which do any of the Acquired Companies foregoing or any agreement to engage in any of the foregoing. For purposes of this Agreement, "SUPERIOR PROPOSAL" shall mean an Acquisition Proposal not solicited in violation of this Agreement that is on terms which the board of directors of Seller determines in good faith to be more favorable from a partyfinancial point of view to Seller or Seller's stockholders, as the case may be, than terms of the transactions contemplated by this Agreement (after consultation with Seller's outside financial advisor), and will use its reasonable best efforts with respect to enforce which the board of directors of Seller has determined in good faith (after consultation with Seller's outside financial advisor) that financing, to the extent required, is reasonably capable of being obtained; provided, however, that for purposes of this definition, "Acquisition Proposal" shall be deemed to refer only to a transaction involving a majority of the outstanding voting securities of Seller or cause to be enforced each such agreement at a majority, substantially all, or all of the request assets or non-cash assets of ParentSeller (other than the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Claim).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Animas Corp), Asset Purchase Agreement (Cygnus Inc /De/)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, not directly or indirectlyindirectly do, and shall cause the other Acquired Companies, its Representatives and the Representatives ensure that no Representative of any of the other Acquired Companies not to, Corporations directly or indirectlyindirectly does, any of the following: (i) solicit, initiate, encourage, induce or facilitate any inquiries regardingthe communication, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal, Proposal or Acquisition Inquiry; (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, Inquiry; (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal or Proposal; (v) execute or enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting ; or (vi) release or permit the foregoingrelease of any Person from, it is agreed that or waive or permit the waiver of any violation provision of the restrictions set forth in this Section 6.3(a) by or right under, any Representative of confidentiality, non-solicitation, no hire, “standstill” or similar agreement to which any of the Acquired Companies, whether Corporations is a party or not such Person is purporting to act on behalf of under which any of the Acquired Companies or otherwiseCorporations has any rights; provided, shall be deemed however, that, notwithstanding anything contained in this Section 4.3(a) (but subject to be a breach the other provisions of this Section 6.3(a) by the Company. Notwithstanding the foregoingAgreement), from the date hereof and prior to the adoption and approval of this Agreement by the Required Company Shareholder Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing may furnish nonpublic information regarding the Acquired Companies Corporations to, or entering enter into or conducting discussions or negotiations with, or take any of the actions specified in clause (v) with respect to any Person in response to a an unsolicited bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if if: (A) neither the Company nor any Representative of any of the Acquired Companies Corporations shall have breached or violated taken any action inconsistent with any of the provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal, 4.3; (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations board of directors of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes has determined in good faith, faith (after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputation, advisors) that such the Acquisition Inquiry or the Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and Offer, (C) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that such action is required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (D) at least two (2) business days prior to furnishing any such nonpublic information to to, or entering into discussions or negotiations with, or take any of the actions specified in clause (v) with respect to, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person; (E) the Company receives from such Person an executed confidentiality agreement containing customary limitations provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions, no hire provisions and “standstill” provisions) at least as favorable to the Company as those contained in the Confidentiality Agreement; and (F) at least two (2) business days prior to furnishing any nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the use Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement.
(b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and disclosure in no event later than 24 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto.
(c) The Company shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(d) The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all nonpublic written and oral confidential information heretofore furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentCorporations.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Avalon Pharmaceuticals Inc), Merger Agreement (Clinical Data Inc)
No Solicitation. (a) During Until this Agreement has been terminated in accordance with Section 8.1, none of the Pre-Closing PeriodCompany, its Subsidiaries or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of the Company or any of its Subsidiaries shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, indirectly (i) solicit, initiate, encourage, induce initiate or encourage or facilitate (including by way of furnishing information) or take any other action designed to facilitate any inquiries regardingor proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including, without limitation, by way of a tender offer) or similar transactions involving the makingCompany or any of its Subsidiaries that, submissionif consummated, reaffirmation would constitute an Alternative Transaction (any of the foregoing inquiries or announcement of any Acquisition Proposal or take any action that could reasonably be expected proposals being referred to lead to herein as an “Acquisition Proposal”), (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal regarding an Alternative Transaction or (viii) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or regarding any Contract contemplating or otherwise relating to any Acquisition Alternative Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and Board of Directors of the Company shall be permitted, prior to the adoption Company Shareholder Meeting, and subject to compliance with the other terms of this Agreement by Section 6.11 and to first entering into a confidentiality agreement with the Required Company Shareholder Voteperson proposing such Acquisition Proposal on terms substantially similar to, nothing in this Agreement (including this Section 6.3(a)) shall, subject and no less favorable to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding than, those contained in the Acquired Companies toConfidentiality Agreement, or entering into or conducting to (A) consider and participate in discussions or and negotiations with, any Person in response with respect to a bona fide Acquisition Proposal received by the Company, and (B) withdraw, modify or qualify the Company Recommendation, in each case if and only to the extent that the Board of Directors of the Company reasonably determines in good faith (after consultation with outside legal counsel) that failure to do so would cause it to violate its fiduciary duties (a “Change in Recommendation”) and (C) approve or recommend, or enter into (and, in connection therewith, effect a Change in Recommendation), a definitive agreement with respect to an unsolicited, bona fide and written Acquisition Proposal that is submitted to the Company after the date of this Agreement and prior to the approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, if and so long as (1) none of the Company, any of its Affiliates or any of its or their officers, directors, agents or representatives has violated any of the provisions of this Section 6.11, (2) the Company provides Parent with written notice indicating that the Company, acting in good faith, believes that the Acquisition Proposal is reasonably likely to constitute a Superior Proposal and, therefore, plans to conduct a meeting of the Board of Directors of the Company for the purpose of considering whether the Acquisition Proposal constitutes a Superior Proposal, which notice shall be delivered to Parent at least three business days prior to the date of such Person meeting of the Board of Directors of the Company, (3) during the three business day period after the Company provides Parent with the written notice described in clause (2) above, the Company shall cause its financial and legal advisors to negotiate in good faith with Parent in an effort to make such period adjustments to the terms and conditions of this Agreement such that the Acquisition Proposal would not constitute a Superior Proposal and, therefore, the Company would be required to proceed with the transactions contemplated hereby on such adjusted terms, (4) notwithstanding the negotiations and not withdrawnany adjustments pursuant to clause (3) which is above, the Board of Directors of the Company makes the determination necessary for the Acquisition Proposal to constitute a Superior Proposal, (5) notwithstanding the negotiations and any adjustments pursuant to clause (3) above, the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel and its financial advisors) that failure to take such actions would be reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach violation of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal duties under applicable law and (iv6) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other later than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required approval or recommendation of, or the execution and delivery of a definitive agreement with respect to, any such Superior Proposal, the Company Stockholder Vote and the termination of (I) terminates this Agreement pursuant to Article XISection 8.1(h), (II) makes the Company Board or its Special Committee may take one or more payments required to be made pursuant to Section 8.3 and (III) delivers to Parent a written certification duly executed by each other party to such Superior Proposal pursuant to which each such other party certifies that it is aware of the actions described in amounts payable under Section 8.3 and that it waives any right that it may have to contest the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresamounts so payable.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Tierone Corp), Merger Agreement (Tierone Corp)
No Solicitation. (a) During the Pre-Closing Period, the Company shall agrees that it will not, directly or indirectlyand will cause its Subsidiaries and its Subsidiaries’ officers, directors, agents, advisors and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies affiliates not to, directly or indirectlyinitiate, (i) solicit, initiate, encourage, induce encourage or knowingly facilitate any inquiries regardingor proposals with respect to, or the making, submission, reaffirmation or announcement of engage in any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companiesnegotiations concerning, or provide any access to the booksconfidential or nonpublic information or data to, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in have any discussions or negotiations with with, any Person in respect of, or otherwise cooperate with respect person relating to, any Acquisition Proposal; provided that, (iv) approve, endorse or recommend any in the event Company receives an unsolicited bona fide Acquisition Proposal or (v) enter into any letter and the Board of intent, arrangement, understanding, agreement, agreement Directors of Company concludes in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed good faith that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that constitutes or is submitted to the Company by such Person during such period (and more likely than not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Proposal, Company nor any Representative of any of the Acquired Companies shall have breached may, and may permit its Subsidiaries and its Subsidiaries’ representatives to, furnish or violated this Section 6.3(a) in any respect that results cause to be furnished nonpublic information and participate in such Acquisition Proposal, (B) negotiations or discussions to the extent that the Board of Directors of Company Board or its Special Committee concludes in good faith, after consultation with faith (and based on the Company’s or the Special Committee’s advice of outside legal counsel, ) that failure to take such action actions would be inconsistent with the more likely than not to result in a violation of its fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, law; provided that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent providing any nonpublic information concerning any of the Acquired Companies that is furnished permitted to any third Person or its Representatives which was not previously be provided to Parent.
(b) From and after the execution of this Agreement, except pursuant to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and foregoing proviso or engaging in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposalnegotiations, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with it shall have entered into a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing with such information third party on terms no less favorable to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such PersonConfidentiality Agreement of December 9, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom2010. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall will immediately (i) cease and cause to be terminated any existing solicitationactivities, discussion, negotiation discussions or negotiations conducted before the date of this Agreement with any persons other action conducted by any of the Acquired Companies or any of their respective Representatives than Purchaser with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts efforts, subject to applicable law, to (x) enforce any confidentiality or cause similar agreement relating to be enforced each an Acquisition Proposal and (y) within ten business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Purchaser and its affiliates) pursuant to any such agreement at confidentiality or similar agreement. Company will promptly (and in any event within 24 hours) advise Purchaser following receipt of any Acquisition Proposal and the request substance thereof (including the identity of Parentthe person making such Acquisition Proposal), and will keep Purchaser promptly apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis.
(b) Nothing contained in this Agreement shall prevent Company or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; provided that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Marshall & Ilsley Corp), Merger Agreement (Bank of Montreal /Can/)
No Solicitation. (a) During On the Pre-Closing Perioddate hereof the Company will instruct and cause the Company’s directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, brokers, consultants and other representatives or advisors (collectively, “Agents”), its Subsidiaries and their respective Agents to immediately cease all discussions and negotiations with any Persons that may be ongoing with respect to a Takeover Proposal, and deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Takeover Proposal and such notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries.
(b) The Company shall not, directly or indirectly, and nor shall cause the other Acquired Companies, it permit any of its Representatives and the Representatives of the other Acquired Companies not Subsidiaries to, directly nor shall it authorize or indirectly, permit any of its or its Subsidiaries’ Agents to (i) directly or indirectly solicit, initiate, encourage, induce initiate or knowingly encourage or facilitate any inquiries regardingor the making of any proposal or offer that constitutes, or may reasonably be likely to lead to, any Takeover Proposal (which for the purposes of this subclause and subclause (ii) shall not include providing information to a member of the Board in his capacity as a director), (ii) provide any non-public information, or afford access to the properties, books, records, or personnel of the Company or any of its Subsidiaries, to any Person that the Company has reason to believe is considering making, submissionor has made, reaffirmation any Takeover Proposal, (iii) enter into or announcement maintain or continue discussions or negotiate with any Person in furtherance of any Acquisition such inquiries or to obtain a Takeover Proposal or take otherwise in connection with any action Takeover Proposal, (iv) approve, endorse, recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to a Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into pursuant to Section 4.02(c)) (an “Acquisition Agreement”) or any proposal or offer that could reasonably be expected to lead to an Acquisition a Takeover Proposal, (v) amend or waive any standstill or similar provision of any agreement with respect to any equity of the Company or its Subsidiaries or (vi) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Agents to take any such action.
(c) Notwithstanding anything to the contrary in this Section 4.02, at any time following the date of this Agreement and prior to 12:01 a.m. (New York time) on the thirtieth (30th) day following the date hereof (the “Go Shop End Date”), the Company may directly or indirectly through advisors, Agents or other intermediaries (i) solicit, encourage and facilitate a Takeover Proposal from any Person, (ii) furnish provide non-public information or data to any nonpublic information regarding any Person with which it has entered into a confidentiality agreement with provisions relating to confidentiality that are no less favorable to the Company than the provisions of the Acquired CompaniesConfidentiality Agreement (it being understood that such confidentiality agreement shall contain provisions that expressly permit the Company to comply with the terms of this Agreement, or provide any including Section 4.02 hereunder) (an “Acceptable Confidentiality Agreement”) and afford access to the properties, books, records records, or personnel of any of the Acquired CompaniesCompany and its Subsidiaries, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, and (iii) engage in, continue or otherwise participate in any discussions or negotiations concerning a Takeover Proposal with any Person in respect of, or otherwise cooperate with respect to, such Person; provided that the Company shall simultaneously provide to Parent and Merger Sub any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating material non-public information that is provided to any Acquisition Transactionsuch Person which has not previously been provided to Parent and Merger Sub. Without limiting In addition, notwithstanding anything to the foregoing, it is agreed that any violation of the restrictions set forth contrary in this Section 6.3(a) by 4.02, if the Board receives a bona fide written Takeover Proposal from any Representative of Person following the Go Shop End Date, which Takeover Proposal did not result from any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) 4.02 by the Company. Notwithstanding Company or its Agents, then the foregoingCompany may, from the date hereof and prior pursuant to an Acceptable Confidentiality Agreement, furnish non-public information to the adoption Person making such Takeover Proposal and afford access to the properties, books, records, and personnel of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies or any of its Subsidiaries to, or entering and enter into or conducting discussions or negotiations with, any such Person in response connection with a Takeover Proposal provided that the Company shall simultaneously provide to a bona fide written Acquisition Proposal Parent and Merger Sub any material non-public information that is submitted provided to the Company by any such Person during such period (which has not previously been provided to Parent and not withdrawn) which is reasonably likely Merger Sub; and provided, however, that prior to result in a Superior Proposal if (A) neither the Company nor any Representative of taking any of the Acquired Companies shall have breached foregoing actions, (i) the Board has determined in good faith that such Takeover Proposal is, or violated this Section 6.3(a) in any respect that results in such Acquisition could reasonably be likely to lead to the delivery of, a Superior Proposal, and (Bii) the Company Board or its Special Committee concludes has determined in good faith, faith (after consultation with the Company’s or the Special Committee’s outside its legal counsel, advisors) that failure to take such action would be inconsistent with the directors’ fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentLaw.
(bd) From The Company will notify Parent orally and in writing promptly after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, receipt (and in any event within twenty‑four (24) hours) by the Company or its Subsidiaries (or any of their respective Agents) of any Takeover Proposal (or modification or amendment thereof), or the granting of any access to non-public information of the Company and its Subsidiaries or access to their books and records, business property or assets and shall specify the identity of the Party making the Takeover Proposal or receiving such access and the material terms thereof. The Company will keep Parent reasonably informed, on a current basis, of the status of any such Takeover Proposal or access (including the material terms and conditions thereof and any modifications thereto). The Company shall provide Parent with at least forty-eight (48) hours following the initial receipt by any Acquired Company prior notice of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any meeting of the Acquired Companies (other than requests for information in Board at which the ordinary course of business and unrelated Board is reasonably expected to an Acquisition consider any Takeover Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, agrees that it will not enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and after the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination date of this Agreement pursuant to Article XI, that would prevent the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation from complying with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a4.02(d).
(e) The Company agrees not to release or permit the release For purposes of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Fortegra Financial Corp), Merger Agreement (Tiptree Financial Inc.)
No Solicitation. (a) During Prior to the Pre-Closing PeriodEffective Time, the Company shall notagrees that neither it, directly any of its respective Subsidiaries or indirectlyaffiliates, and shall cause the other Acquired Companies, its Representatives and the Representatives nor any of the other Acquired Companies not torespective directors, executive officers, agents or representatives of the foregoing, will, directly or indirectly, (i) solicit, initiate, encourage, induce initiate or facilitate encourage (including by way of furnishing information) any inquiries regardingor the making of any proposal with respect to any merger, consolidation or other business combination involving the Company or any Subsidiary of the Company or the acquisition of all or any significant part of the assets or capital stock (including but not limited to a majority voting interest) of the Company or any Subsidiary of the Company (an "Acquisition Transaction") or (ii) negotiate or otherwise engage in discussions with any person (other than Holdings and its representatives) with respect to any Acquisition Transaction, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could which may reasonably be expected to lead to a proposal for an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired CompaniesTransaction, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any agreement, arrangement or understanding (including any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating agreement) with respect to any such Acquisition Transaction. Without limiting the foregoing; provided, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companieshowever, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwisethat, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies tomay, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted proposal or inquiry unsolicited after the Original Execution Date, furnish information to, negotiate or otherwise engage in discussions with any person (pursuant to a customary confidentiality agreement) which makes or indicates in writing an intention or desire to make, and with respect to whom the Board of Directors of the Company by such Person during such period (and not withdrawn) which has concluded in good faith after consultation with its financial advisor is reasonably likely to result in capable of making, a Superior Proposal (as herein defined), if (A) neither the Board of Directors of the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s or the Special Committee’s its outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary obligations duties of the Board of Directors of the Company under applicable law and such proposed Acquisition Transaction was not solicited by it in, or did not otherwise result from a, breach of this Section 6.2 and subject to compliance with the other provisions of this Section 6.2; and provided further that notwithstanding anything to the contrary herein contained, the Board of Directors of the Company may take and disclose to the Company’s shareholders 's stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act, comply with Rule 14d-9 thereunder and make all other disclosures required by applicable Legal Requirements, (C) law. Any of the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely foregoing to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Personthe contrary notwithstanding, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral may engage in discussions with or provide information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person person or its Representatives which was not previously provided group that has made a proposal unsolicited after the Original Execution Date with respect to Parentan Acquisition Transaction for the limited purpose of determining whether such proposal is, or could lead to, a Superior Proposal.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis Except as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations duties of the Company Company's Board to the Company’s shareholders of Directors under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XIlaw, the Company agrees that, as of the Original Execution Date, it, its Subsidiaries and affiliates, and the respective directors, executive officers, agents and representatives of the foregoing, shall immediately (i) cease and cause to be terminated any existing solicitationactivities, discussion, negotiation discussions or negotiations with any person (other action than Holdings and its representatives) conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any Acquisition Proposal effective as Transaction. The Company agrees to promptly advise Holdings, its Subsidiaries or affiliates, of the date hereofany inquiries or proposals received by, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information requested from, or any negotiations or discussions sought to be initiated or continued with, the Company, its Subsidiaries or affiliates, or any of the respective directors, executive officers, agents or representatives of the foregoing, in each case from a person (other than Holdings and its representatives) with respect to an Acquisition Transaction, and a reasonable summary of the terms thereof, including the identity of such third party (other than unless disclosing the Buyer Parties and their respective Representatives), in each case, subject to identity of such third party would violate the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release terms of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” confidentiality or similar agreement binding on the Company and entered into on or prior to which September 19, 1997), including any financing arrangement or commitment in connection therewith, and, except as otherwise would be inconsistent with the fiduciary duties of the Acquired Companies is a partyCompany's Board of Directors under applicable law, and will use its to update on an ongoing basis or upon Holdings' reasonable best efforts request, the status thereof, as well as any actions taken or other developments pursuant to enforce or cause to be enforced each such agreement at the request of Parentthis Section 6.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hochberg Larry J), Agreement and Plan of Merger (Sportmart Inc)
No Solicitation. (a) During From the Pre-date of this Agreement until the Closing Periodor, if earlier, the termination of this Agreement in accordance with its terms, the Company shall and the ESOP agree that they will not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, or directly or indirectlyindirectly through any officer, director, employee, investment banker, attorney, advisor, representative or agent (each a “Representative”), as applicable for any or all of them (i) solicit, initiateinitiate or knowingly encourage the submission of any inquiry, encourage, induce proposal or facilitate any inquiries regardingoffer (whether in writing or otherwise) that constitutes, or could lead to, a proposal or offer for a merger, consolidation, business combination, recapitalization, sale of substantial assets or sale of a substantial percentage of the makingShares (including without limitation by way of a public offering or private placement) involving the Company other than the Contemplated Transactions (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”); (ii) engage in negotiations or discussions concerning, submissionor provide any non-public information to any Person relating to, reaffirmation any Acquisition Proposal; or announcement (iii) agree to, approve or recommend any Acquisition Proposal; provided, however, that if, at any time after the date hereof, the ESOP receives an unsolicited bona fide written Acquisition Proposal (under circumstances in which the Company and the ESOP have complied with their obligations under this Section 6.15) from any Person (other than Purchaser), which is determined in good faith (after consultation with its financial advisors and the Board of Directors of the Company) by the Trustee to be, or to be reasonably likely to result in a Superior Proposal, the ESOP may (x) furnish non-public information about the Company to the Person making such Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement not materially less restrictive of such Person than the Confidentiality Agreement and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal; provided that the Trustee shall not take any such action unless the Trustee shall have determined in good faith, after consultation with outside counsel, that the failure to take such action would be deemed to constitute a breach of its fiduciary duties under applicable Law. The Company and the ESOP agree to notify Purchaser as soon as is reasonably practicable (and not later than forty-eight (48) hours) after receipt of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic request for non-public information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry for access to the properties, books or indication records of interest the Company by any Person that could reasonably be expected to lead to informs the Company or the ESOP that it is considering making or has made an Acquisition Proposal. Such notice shall be made orally (and shall be confirmed in writing) and shall indicate the identity of the Person making, and the material terms and conditions of, such proposal, inquiry or contact notwithstanding any confidentiality restrictions applicable thereto (iii) engage inwhich the ESOP shall be required to obtain waiver of prior to its review of any such proposal, continue inquiry or otherwise participate in contact). The ESOP shall inform Purchaser and the Company periodically of the status and content of any discussions or negotiations regarding such Acquisition Proposal with such Person and as promptly as reasonably practicable of any Person change in respect ofthe price, structure or otherwise cooperate with respect to, any form of the consideration or material terms of and conditions regarding the Acquisition Proposal. Each of the Company and the ESOP will use its best efforts to prevent its Representatives from taking any action prohibited hereby if taken by the Company or the ESOP. If either of the Company or the ESOP learns of any such action taken by a Representative, the Company or the ESOP, as the case may be, will immediately advise Purchaser and provide the information specified herein. Notwithstanding anything to the contrary contained herein, (ivi) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth nothing in this Section 6.3(a) by any Representative of any 6.15 shall delay or otherwise affect those obligations of the Acquired Companiesparties arising under Section 6.4(a) and Section 6.7(a) hereof, whether or not such Person is purporting to act on behalf of any of and (ii) if the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a ESOP receives an unsolicited bona fide written Acquisition Proposal that is submitted to (under circumstances in which the Company by such and the ESOP have complied with their obligations under this Section 6.15) from any Person during such period (and not withdrawn) other than Purchaser), which is determined in good faith (after consultation with its financial advisors and the Board of Directors of the Company) by the Trustee to be, or to be reasonably likely to result in a Superior Proposal if (A) neither and at or after the Company nor any Representative of any time of the Acquired Companies receipt of such Acquisition Proposal all of the conditions to the Closing set forth in Article VII (except those conditions which by their nature can only be satisfied on the Closing Date) have been or are subsequently satisfied, the ESOP shall have breached determine (and shall provide reasonably prompt oral and written notice of such determination to Purchaser and the Company) to accept or violated this Section 6.3(areject such Acquisition Proposal within seven (7) in any respect Business Days following the later of the receipt of such Acquisition Proposal or satisfaction of such conditions. In the event that results in the ESOP determines to accept such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faithESOP shall, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable next succeeding Business Day following the furnishing expiration of nonpublic information pursuant to this such seven (7) Business Day period, invoke the procedures set forth in Section 6.3(a11.1(e), including, without limitation, by providing Purchaser with five (5) Business Days to amend the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach terms of its fiduciary duties, each of offer. In the Company Parties shall promptly, and in any event within forty-eight (48) hours following that the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating ESOP determines to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of reject such Acquisition Proposal, indicationthe ESOP shall, inquiry or requeston the next succeeding Business Day following the expiration of such seven (7) Business Day period, together with a copy thereof (if availableprovide notice to the Person(s) or if not in writing, a written description thereof, (iii) making the identity of the Person making such Acquisition Proposal of such rejection, and (iv) the Company’s intention to furnish information to, or enter into shall cease all negotiations and discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any with such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(aPerson(s).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Global Defense Technology & Systems, Inc.), Stock Purchase Agreement (Global Defense Technology & Systems, Inc.)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not directly or indirectly, shall ensure that each other Acquired Corporation and all Representatives of the Acquired Corporations do not, directly or indirectly, and shall cause not authorize or permit its employees or the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies Corporations’ employees who are not officers or directors to, directly or indirectly, indirectly (other than with respect to Parent and Acquisition Sub): (i) solicit, initiate, initiate or knowingly encourage, induce assist or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take Acquisition Inquiry (including by approving any action that could reasonably be expected to lead to transaction, or approving any Person (other than Parent and its Affiliates) becoming an Acquisition Proposal, “interested stockholder,” for purposes of Section 203 of the DGCL); (ii) furnish or otherwise provide access to any nonpublic non-public information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry Acquisition Inquiry; or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend to any Acquisition Proposal or Acquisition Inquiry (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating except to any Acquisition Transaction. Without limiting disclose the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach existence of this Section 6.3(a5.3 and this Agreement).
(b) by Notwithstanding anything to the Company. Notwithstanding the foregoingcontrary contained in Section 5.3(a) or elsewhere in this Agreement, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder VoteAcceptance Time, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic may furnish non-public information regarding the Acquired Companies Corporations to, or entering and enter into or conducting discussions or negotiations with, any Person in response to a (and in connection with) an unsolicited, bona fide fide, written Acquisition Proposal or Acquisition Inquiry that is submitted to the Company by such Person during such period (and not withdrawn) which is and could reasonably likely be expected to result in lead to a Superior Proposal if Offer if: (Ai) neither no Acquired Corporation shall have breached the Company nor any provisions of this Section 5.3 and no Representative of any Acquired Corporation shall have taken any action that would constitute a breach of the Acquired Companies shall have breached or violated provisions of this Section 6.3(a) in any respect that results in 5.3 if such Acquisition Proposal, action had been taken by an Acquired Corporation; (Bii) the board of directors of the Company Board or its Special Committee concludes determines in good faith, after consultation with having taken into account the advice of the Company’s or independent financial advisor and the Special CommitteeCompany’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is or Acquisition Inquiry constitutes or would reasonably likely be expected to lead to result in a Superior Proposal Offer; and (Diii) concurrently or prior to furnishing any such nonpublic non-public information to to, or entering into discussions or negotiations with, such Person, the Company Company: (A) gives Parent written notice of the identity of such Person and of the Company’s intention to furnish non-public information to, or enter into discussions or negotiations with, such Person; and (B) receives from such Person Person, and delivers to Parent a copy of, an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic non-public written and oral information furnished to such Person by or on behalf of the Company Acquired Corporations and customary “standstill” provisions. As promptly as reasonably practicable following provisions and containing other provisions no less favorable to the Company than the provisions of the Confidentiality Agreement and prior to or concurrently with furnishing of nonpublic any such non-public information pursuant to this Section 6.3(a)such Person, the Company shall provide furnishes such non-public information to Parent any nonpublic (to the extent such non-public information concerning any of has not been previously furnished by the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided Company to Parent.
(bc) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of If the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the other Acquired Companies Corporation or any of their respective Representatives may receive receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, the Company shall promptly (and in no event later than: (A) 24 hours after the date hereof, receipt of such Acquisition Proposal or written Acquisition Inquiry; or (B) 48 hours after receipt of such Acquisition Inquiry that is not in writing) advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, or Acquisition Inquiry (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, the material terms and conditions thereof, and, if available, any written documentation received by such Acquired Corporation setting forth such terms and conditions). Notwithstanding the foregoing, an Acquired Corporation shall not be obligated to advise Parent of such Acquisition Proposal or Acquisition Inquiry in the manner contemplated by the previous sentence if doing so would violate any written agreement between the Company and a third party that was entered into prior to September 18, 2012; provided, however, that unless and until Parent is advised of such Acquisition Proposal or Acquisition Inquiry in the manner contemplated by the previous sentence (iv) including by providing Parent with the Company’s intention to furnish information toidentity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry), or enter into the Acquired Corporations and their Representatives shall be prohibited from engaging in any discussions or negotiations with, with such Personthird party (other than to inform such third party that no discussions or negotiations may take place unless such third party consents to such disclosure) and from providing non-public information to such third party. The Company shall keep Parent reasonably informed on a prompt basis as with respect to any material developments regarding the status of any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take Acquisition Inquiry and any action to exempt modification or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresproposed modification thereto.
(d) Until the earlier The Company shall, and shall ensure that each other Acquired Corporation and all Representatives and employees of the Merger Effective Time and the termination of this Agreement pursuant to Article XIAcquired Corporations, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussionencouragement, negotiation discussions or other action conducted by negotiations with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)or Acquisition Inquiry.
(e) The Company Company: (i) agrees not to that it will not, and shall ensure that each other Acquired Corporation will not, release or permit the release of any Person from, or to amend or waive or permit the amendment or waiver of any provision of, any confidentiality, non-solicitation, no-hire, “standstill” or similar agreement or provision to which any of the Acquired Companies Corporations is or becomes a party, party or under which any of the Acquired Corporations has or acquires any rights (including the “standstill” provision contained in any confidentiality agreement entered into by the Company pursuant to Section 5.3(b)(iv)(B)); and (ii) will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent. The Company also shall promptly: (A) request each Person that has executed a confidentiality agreement or similar agreement in connection with its consideration of a possible Acquisition Proposal or investment in any Acquired Corporation to return or destroy all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations; and (B) prohibit any third party from having access to any physical or electronic data rooms relating to a possible Acquisition Proposal.
(f) Except as permitted by Section 5.3(g) or Section 5.3(h), neither the board of directors of the Company nor any committee thereof shall: (i) withdraw or modify in a manner adverse to Parent or Acquisition Sub, permit the withdrawal or modification in a manner adverse to Parent or Acquisition Sub, or publicly propose to withdraw or modify in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation (it being understood that the Company Board Recommendation shall be deemed to have been modified in a manner adverse to Parent if it shall no longer be unanimous) or resolve, agree or propose to take any of the actions contemplated by this clause “(i)” (any action described in this clause “(i)” being referred to as an “Adverse Recommendation Change”); or (ii) approve, endorse, accept or recommend, or publicly propose to approve, endorse, accept or recommend, any Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar document or Contract constituting or relating to, or that is intended to, contemplates or is reasonably likely to result in, an Acquisition Transaction, other than a confidentiality agreement referred to in Section 5.3(b)(iii)(B), or resolve, agree or propose to take any of the actions contemplated by this clause “(ii).”
(g) Notwithstanding anything to the contrary contained in Section 5.3(f) or elsewhere in this Agreement, the board of directors of the Company may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change and thereafter may cause the Company to terminate this Agreement in accordance with Section 8.1(f) and, concurrently with such termination, cause the Company to enter into a Specified Definitive Acquisition Agreement in accordance and subject to compliance with the provisions of Section 8.1(f) if: (i) an unsolicited, bona fide, written Acquisition Proposal that did not otherwise result from a breach of the provisions of this Section 5.3 is made to the Company and is not withdrawn; (ii) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s independent financial advisor and the advice of the Company’s outside legal counsel, that such Acquisition Proposal constitutes a Superior Offer; (iii) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that, in light of such Superior Offer, failure to make an Adverse Recommendation Change or failure to take action pursuant to Section 8.1(f) would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable Delaware law; (iv) prior to effecting such Adverse Recommendation Change or taking action pursuant to Section 8.1(f), the Company’s board of directors shall have given Parent at least five business days’ prior written notice: (A) that it has received a Superior Offer that did not result from a breach of any of the provisions of this Section 5.3 or any “standstill” or similar agreement or provision under which any Acquired Corporation has any rights; (B) that it intends to make an Adverse Recommendation Change or take action pursuant to Section 8.1(f) as a result of such Superior Offer; and (C) specifying the material terms and conditions of such Superior Offer, including the identity of the Person making such offer (and attaching the most current and complete version of any written agreement or other document relating thereto) (it being understood and agreed that any change to the consideration payable in connection with such Superior Offer or any other material modification thereto shall require a new five business days’ advance written notice by the Company (except that the five business day period referred to above shall be reduced to three business days)); (v) during any such notice period(s), the Company engages (to the extent requested by Parent) in good faith negotiations with Parent to amend this Agreement in such a manner that such Superior Offer would no longer constitute a Superior Offer; and (vi) at the time of any Adverse Recommendation Change and the taking of action pursuant to Section 8.1(f), the board of directors of the Company determines in good faith, after taking into account the advice of the Company’s independent financial advisor and the advice of the Company’s outside legal counsel, that the failure to make an Adverse Recommendation Change and the failure to take action pursuant to Section 8.1(f) would still be inconsistent with the fiduciary duties of the Company’s board of directors under applicable Delaware law in light of such Superior Offer (taking into account any changes to the terms of this Agreement proposed by Parent as a result of the negotiations required by clause “(v)” or otherwise).
(h) Notwithstanding anything to the contrary contained in Section 5.3(f) or elsewhere in this Agreement, the board of directors of the Company may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that does not relate to any Acquisition Proposal that was not known by the Company’s board of directors on the date of this Agreement (or if known, the consequences of which are not known to or reasonably foreseeable by the Company’s board of directors as of the date hereof), which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company’s board of directors prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to an Acquisition Proposal being referred to as an “Intervening Event”); (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Parent, at least two days prior to any meeting of the Company’s board of directors at which such board of directors will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s independent financial advisor and the advice of the Company’s outside legal counsel, that, in light of such Intervening Event, failure to make an Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable Delaware law; (v) no Adverse Recommendation Change has been made for five business days after receipt by Parent of a written notice from the Company confirming that the Company’s board of directors has determined that the failure to make such an Adverse Recommendation Change in light of such Intervening Event would be inconsistent with its fiduciary duties under applicable Delaware law; (vi) during such five business day notice period, the Company engages (to the extent requested by Parent) in good faith negotiations with Parent to amend this Agreement in such a manner that failure to make an Adverse Recommendation Change as a result of such Intervening Event would no longer be inconsistent with the fiduciary duties of the Company’s board of directors; and (vii) at the time of any Adverse Recommendation Change, the board of directors of the Company determines in good faith, after taking into account the advice of the Company’s independent financial advisor and the advice of the Company’s outside legal counsel, that the failure to make an Adverse Recommendation Change would still be inconsistent with the fiduciary duties of the Company’s board of directors under applicable Delaware law in light of such Intervening Event (taking into account any changes to the terms of this Agreement proposed by Parent as a result of the negotiations required by clause “(vi)” or otherwise)
(i) Nothing contained in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company from: (i) 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) making any disclosure to its stockholders if the board of directors of the Company determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that failure to do so would be inconsistent with its fiduciary duties under applicable Delaware law; provided, however, that this Section 5.3(i) shall not be deemed to permit the board of directors of the Company to make an Adverse Recommendation Change or take any of the actions referred to in clause “(ii)” of Section 5.3(f) except, in each case, to the extent permitted by Section 5.3(g) and Section 5.3(h).
Appears in 2 contracts
Sources: Merger Agreement (Riverbed Technology, Inc.), Merger Agreement (Opnet Technologies Inc)
No Solicitation. (a) During From and after the Pre-Closing Perioddate hereof until the Expiration Date, the Company each Shareholder shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (ia) solicit, initiate, initiate or knowingly encourage, induce or facilitate any inquiries regardingthe communication, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry regarding the Company or take any action that could reasonably be expected to lead to an Acquisition ProposalProposal or Acquisition Inquiry regarding the Company, (iib) furnish any nonpublic non-public information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Company to any Person in connection with or in response to an Acquisition Proposal or an inquiry Acquisition Inquiry regarding the Company, (c) engage in discussions or indication negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry regarding the Company, (d) approve, endorse or recommend any Acquisition Proposal, (e) execute or enter into any letter of interest intent or any Contract contemplating or otherwise relating to any Acquisition Transaction regarding the Company (subject to Section 5.4 of the Merger Agreement), (f) take any action that could reasonably be expected to lead to an Acquisition ProposalProposal or Acquisition Inquiry regarding the Company, (iiig) engage in, continue initiate a Shareholders’ vote or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate action by consent of the Company’s Shareholders with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any to an Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by Inquiry regarding the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (Bh) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person except by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution reason of this Agreement, except become a member of a “group” (as such term is defined in Section 13(d) of the Exchange Act) with respect to the extent that doing so would result in a breach of its fiduciary duties, each any voting securities of the Company Parties shall promptly, and that takes any action in any event within forty-eight (48) hours following the initial receipt by any Acquired Company support of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or Acquisition Inquiry regarding the Company or (ivi) permit propose or agree to do any of the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” foregoing. In the event that such Shareholder is a corporation, partnership, trust or other anti-takeover Legal Requirements Entity, it shall not permit any of its Subsidiaries or Affiliates to, nor shall it authorize any officer, director or other Representative of such Shareholder or any “excess share” of its Subsidiaries or similar ownership limitation provisions (including the Ownership Limitation) applicable to the CompanyAffiliates to, undertake any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedurescontemplated by this Section 7.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Ikena Oncology, Inc.), Support Agreement (Ikena Oncology, Inc.)
No Solicitation. (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and the Company shall cause the other Acquired Companies, use commercially reasonable efforts to ensure that its Representatives Subsidiaries and the respective Representatives of the other Acquired Companies not toSymyx Corporations do not, directly or indirectly, :
(i) solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Company Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Symyx Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an any Company Acquisition Proposal, ;
(iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofrelating to, or otherwise cooperate with respect that prior to such discussions or negotiations would reasonably be expected to give rise to, any Company Acquisition Proposal, ;
(iv) approve, endorse or recommend any Company Acquisition Proposal or Proposal; or
(v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction. Without limiting the foregoing; provided, it is agreed however, that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)4.4(a) shall, subject to Section 6.3(b), shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Companies Symyx Corporations to, or entering into or conducting discussions or and negotiations with, any Person in response to if: (A) the Company shall have received from such Person a bona fide written Company Acquisition Proposal that is submitted to that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, the Company by such Person during such period Board determines in good faith is, or would reasonably be expected to result in, a Company Superior Offer (and such proposal has not been withdrawn); (B) which is reasonably likely to such Company Acquisition Proposal did not result in a Superior Proposal if (A) neither the Company nor from any Representative of breach of, or any action inconsistent with, any of the Acquired Companies shall have breached or violated provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal, 4.4(a); (BC) the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s or the Special Committee’s its outside legal counsel, that failure to take such action would reasonably be inconsistent with expected to constitute a breach of the fiduciary obligations duties of the Company Board to the Company’s shareholders stockholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and law; (D) at least four business days prior to furnishing any such nonpublic information to to, or entering into discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure gives Parent written notice of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the such Person making such Acquisition Proposal and (iv) of the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to the Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (E) at least four business days prior to furnishing any information to such Person, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent or Made Available to Parent). The Without limiting the foregoing, any violation of the restrictions contained in this Section 4.4(a) by any Subsidiary or Representative of the Company shall keep be deemed a breach of this Section 4.4(a) by the Company.
(b) During the Pre-Closing Period, Parent reasonably informed on a prompt basis as shall not, directly or indirectly, and Parent shall use commercially reasonable efforts to ensure that its Subsidiaries and the respective Representatives of the Accelrys Corporations do not, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Parent Acquisition Proposal;
(ii) furnish any information regarding any of the Accelrys Corporations to any material developments regarding Person in connection with or in response to any such Parent Acquisition Proposal;
(iii) engage in discussions or negotiations with any Person relating to, indicationor that prior to such discussions or negotiations would reasonably be expected to give rise to, inquiry any Parent Acquisition Proposal;
(iv) approve, endorse or request. None of the Acquired Companies shall, after the date hereof, recommend any Parent Acquisition Proposal; or
(v) enter into any confidentiality agreement letter of intent or similar document or any Contract contemplating or otherwise relating to any Parent Acquisition Transaction; provided, however, that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse prior to the Buyer Partiesapproval of the Parent Proposals (as defined in Section 5.3(a)) by the Required Parent Stockholder Vote, this Section 4.4(b) shall not prohibit Parent from furnishing information regarding the Accelrys Corporations to, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter entering into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Companydiscussions and negotiations with, any Person if: (other than A) the Buyer Parties Parent shall have received from such Person a bona fide Parent Acquisition Proposal that, after consultation with a financial advisor of nationally recognized reputation and their respective Affiliatesoutside legal counsel, the Parent Board determines in good faith is, or would reasonably be expected to result in, a Parent Superior Offer (and such proposal has not been withdrawn); (B) such Parent Acquisition Proposal did not result from any breach of, or any action taken by inconsistent with, any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and provisions set forth in this Section 4.4(b); (C) the termination of this Agreement pursuant to Article XI, the Company Parent Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s (or the Special Committee’s, as applicable) its outside legal counsel, that failure to take such action would reasonably be inconsistent with expected to constitute a breach of the fiduciary obligations duties of the Parent Board to Parent’s stockholders under applicable law; (D) at least four business days prior to furnishing any information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (E) at least four business days prior to furnishing any information to such Person, Parent furnishes such information to the Company (to the extent such information has not been previously furnished by Parent to the Company or Made Available to the Company). Without limiting the foregoing, any violation of the restrictions contained in this Section 4.4(b) by any Subsidiary or Representative of Parent shall be deemed a breach of this Section 4.4(b) by Parent.
(c) During the Pre-Closing Period, the Company shall promptly (and in no event later than 24 hours) after receipt of any Company Acquisition Proposal: (i) advise Parent orally and in writing of any such Company Acquisition Proposal (including the identity of the Person making or submitting such Company Acquisition Proposal and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and (ii) provide to Parent a copy of any written Company Acquisition Proposal and a copy of all written materials (including copies of any written materials received via e-mail or other electronic medium) received by the Company in connection with such Company Acquisition Proposal. The Company shall keep Parent reasonably informed with respect to: (A) the status of any such Company Acquisition Proposal, and (B) the status and terms of any material modification or proposed material modification thereto. The Company shall provide Parent with 48 hours prior notice (or such lesser notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresconsider any Company Acquisition Proposal.
(d) Until During the earlier Pre-Closing Period, Parent shall promptly (and in no event later than 24 hours) after receipt of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately any Parent Acquisition Proposal: (i) advise the Company orally and in writing of any such Parent Acquisition Proposal (including the identity of the Person making or submitting such Parent Acquisition Proposal and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and (ii) provide to the Company a copy of any written Parent Acquisition Proposal and a copy of all written materials (including copies of any written materials received via e-mail or other electronic medium) received by Parent in connection with such Parent Acquisition Proposal. Parent shall keep the Company reasonably informed with respect to: (A) the status of any such Parent Acquisition Proposal, and (B) the status and terms of any material modification or proposed material modification thereto. Parent shall provide the Company with 48 hours prior notice (or such lesser notice as is provided to the members of the Parent Board) of any meeting of the Parent Board at which the Parent Board is reasonably expected to consider any Parent Acquisition Proposal.
(e) The Company shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request of this Agreement with any Person that all confidential information previously furnished relate to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Company Acquisition Proposal.
(ef) The Parent shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Parent Acquisition Proposal.
(g) Each of Parent and the Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which any such party or any of the Acquired Companies its Subsidiaries is a partyparty or under which any such party or any of its Subsidiaries has any rights, and will use its commercially reasonable best efforts to enforce or cause each such agreement to be enforced each such agreement at the request of Parentthe other party to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Accelrys, Inc.), Merger Agreement (Accelrys, Inc.)
No Solicitation. (a) During the Pre-Closing PeriodThe Company and its Subsidiaries will not, and the Company shall notwill direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directly or indirectlydirectors, employees, investment bankers, consultants, attorneys, accountants, agents and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies representatives not to, directly or indirectly, (i) take any action to solicit, initiate, encourage, induce or knowingly encourage or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal (including without limitation by amending, or take granting any action that could reasonably be expected to lead to an Acquisition Proposalwaiver under, (ii) furnish any nonpublic information regarding any Article NINTH of the Acquired Companies, Company Charter or provide any access to the books, records or personnel of any Section 203 of the Acquired Companies, to DGCL) or any Person inquiry with respect thereto or engage in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in with respect ofthereto (except to notify such Person of the existence of the provisions of this Section 7.8), or otherwise cooperate with respect todisclose any nonpublic information or afford access to properties, books or records to any Person that has made, or to the Company’s knowledge is considering making, any Acquisition Proposal, (iv) approveor approve or recommend, endorse or recommend any Acquisition Proposal propose to approve or (v) recommend, or execute or enter into any letter of intent, arrangementagreement in principle, understanding, merger agreement, option agreement, acquisition agreement in principle or other similar document or any Contract contemplating or otherwise agreement relating to any an Acquisition Transaction. Without limiting the foregoingProposal, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of or propose publicly or agree to do any of the Acquired Companies, whether or not such Person is purporting foregoing relating to act on behalf an Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of any Directors of the Acquired Companies Company from (i) complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal or otherwise(ii) making any disclosure if, in the case of this clause (ii), in the good faith judgment of the Company’s Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided, however, that any such disclosure that relates to an Acquisition Proposal shall be deemed to be a breach of this Section 6.3(a) by Change in the Company Recommendation unless the Company’s Board of Directors reaffirms the Company Recommendation in such disclosure. Notwithstanding the foregoing, from the date hereof and prior anything to the adoption of this Agreement by the Required Company Shareholder Vote, nothing contrary in this Agreement (including this Section 6.3(a)) shall, but subject to the first sentence of Section 6.3(b7.8(b), prohibit prior to (but not after) the date of the Company from furnishing nonpublic Stockholder Approval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information regarding the Acquired Companies toand access, or entering into or conducting discussions or negotiations with, any Person but only in response to a request for information or access, to any Person making a bona fide fide, written Acquisition Proposal that is submitted to the Board of Directors of the Company by after the date hereof which was not obtained in breach of Section 5.2 or this Section 7.8 and (B) participate in discussions and negotiate with such Person during or its representatives concerning any such period unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A) or (B) of this sentence, (1) the Board of Directors of the Company concludes in good faith, after (x) receipt of the advice of a financial advisor of nationally recognized reputation and not withdrawn) which is outside legal counsel, that such Acquisition Proposal constitutes or could reasonably likely be expected to result in a Superior Proposal if and (y) taking into account any revisions to the terms of the Merger or this Agreement proposed by Parent after being notified pursuant to Section 5.2(b), that failure to do so would be reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law and (2) (x) the Company receives from the Person making such an Acquisition Proposal, prior to engaging in any of the activities described in clause (A) neither or (B) of this sentence, an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (i) no less favorable to the Company nor and (ii) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement and (y) any Representative information provided to such Person has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Person. The Board of Directors of the Company shall not take any of the Acquired Companies actions referred to in the foregoing clauses (A) and (B) unless the Company shall have breached first delivered to Parent written notice advising Parent that the Company intends to take such action.
(b) In the event that on or violated after the date of this Section 6.3(aAgreement the Company receives an Acquisition Proposal, or any request for nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or to the Company’s knowledge may be considering making, an Acquisition Proposal, the Company will (A) promptly (and in any respect that results no event later than twenty-four (24) hours after receipt thereof) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition ProposalProposal or request and set forth the material terms thereof) Parent thereof, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations keep Parent reasonably and promptly informed of the Company Board status and material terms of (including with respect to changes to the Company’s shareholders under applicable Legal Requirements, status or material terms of) any such Acquisition Proposal or request and (C) as promptly as practicable (but in no event later than twenty-four (24) hours after receipt) provide to Parent unredacted copies of all material correspondence and written materials (whether or not electronic) sent or provided to the Company Board or any of its Special Committee concludes Subsidiaries that describes any terms or conditions thereof, including any proposed transaction agreements (along with all schedules and exhibits thereto and any financing commitments related thereto), as well as written summaries of any material oral communications relating to the terms and conditions thereof. The Company (x) shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any Persons with respect to any Acquisition Proposal or the possibility thereof, (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the nine (9) months prior to the date hereof in good faith, after consultation connection with its legal counsel and an independent financial advisor consideration of nationally recognized reputation, that such any Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic return or destroy all confidential information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (z) immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its Subsidiaries. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any such Acquisition Proposal and customary “standstill” provisions. As promptly as reasonably practicable following shall enforce the furnishing provisions of nonpublic information pursuant to this Section 6.3(a), any such agreement; provided that the Company shall provide be permitted on a confidential basis, upon written request by a relevant party thereto or without prior notice to Parent disclosing the party and the circumstances, release or waive any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except standstill obligations solely to the extent that doing so would result in a breach necessary to permit the party referred therein to submit an Acquisition Proposal to the Board of its fiduciary duties, each Directors of the Company Parties on a confidential basis. The Company shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company provide written notice to Parent of waiver or release of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal standstill by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity including disclosure of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None identities of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parentparties thereto and circumstances relating thereto.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Anadarko Petroleum Corp), Agreement and Plan of Merger (Occidental Petroleum Corp /De/)
No Solicitation. (a) During From and after the Pre-Closing Perioddate of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shall and its subsidiaries will not, directly nor will they authorize or indirectlypermit any of their respective officers, and shall cause the directors, affiliates or employees or any investment banker, attorney or other Acquired Companies, its Representatives and the Representatives advisor or representative retained by any of the other Acquired Companies not them to, directly or indirectly, (i) solicit, initiate, encourage, encourage or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal(as hereinafter defined), (ii) furnish participate in any nonpublic information regarding any of the Acquired Companiesdiscussions or negotiations regarding, or provide furnish to any access person any non-public information with respect to, or take any other action to facilitate any inquiries or the books, records or personnel making of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate person with respect to, to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. Without limiting Proposal; provided, however, that notwithstanding the foregoing, it is agreed prior to the approval of this Agreement and the Merger at the Company Stockholders' Meeting, this Section 5.4(a) shall not prohibit Company from furnishing nonpublic information regarding Company and its subsidiaries to, or entering into discussions or negotiations with, any person or group who has submitted (and not withdrawn) to Company an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of Company reasonably concludes (based on the written advice of a financial advisor of national standing) may constitute a Superior Offer if (1) neither Company nor any violation representative of Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal5.4, (B2) the Board of Directors of Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputationcounsel, that such Acquisition Proposal action is reasonably likely required in order for the Board of Directors of Company to lead comply with its fiduciary obligations to a Superior Proposal and Company's stockholders under applicable law, (D3) prior to furnishing any such nonpublic information to to, or entering into any such Persondiscussions with, the such person or group, Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic gives Parent written and oral information furnished to such Person by or on behalf notice of the Company identity of such person or group and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing all of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the of Company’s 's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry person or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a partygroup, and will use its reasonable best efforts to enforce Company receives from such person or cause to be enforced each such agreement at the request of Parent.group an executed
Appears in 2 contracts
Sources: Merger Agreement (Verisign Inc/Ca), Merger Agreement (Network Solutions Inc /De/)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, directly or indirectly, shall cause its Subsidiaries and the respective officers, directors, financial advisers, attorneys and accountants of the Avanex Corporations to not, directly or indirectly and shall cause use its reasonable best efforts to ensure that the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not toAvanex Corporations do not, directly or indirectly, :
(i) solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead with respect to an Avanex Corporation or Acquisition Proposal, Inquiry with respect to an Avanex Corporation;
(ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Avanex Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead with respect to an Avanex Corporation or Acquisition Proposal, Inquiry with respect to an Avanex Corporation;
(iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate relating to any Acquisition Proposal with respect to, any to an Avanex Corporation or Acquisition Proposal, Inquiry with respect to an Avanex Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to an Avanex Corporation or Acquisition Inquiry with respect to an Avanex Corporation or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoingTransaction with respect to an Avanex Corporation; provided, it is agreed however, that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Stockholder Vote, nothing in neither this Section 4.4(a) nor any other provision of this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), shall prohibit the Company from furnishing nonpublic information regarding the Acquired Companies Avanex Corporations to, or entering into or conducting discussions or and negotiations with, any Person in response to a bona fide written an Acquisition Proposal that is reasonably expected to result in a Company Superior Offer that is submitted to the Company by such Person during such period after the date hereof (and not withdrawn) which is reasonably likely to result in a Superior Proposal if if: (A) neither the Company nor such Acquisition Proposal did not result from any Representative of breach of, or any action inconsistent with, any of the Acquired Companies shall have breached or violated provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal, 4.4(a); (B) the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s or the Special Committee’s its outside legal counsel, that failure to take such action would be inconsistent with a breach of the fiduciary obligations duties of the Company Board to the Company’s shareholders stockholders under applicable Legal Requirements, law; (C) at least four business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company Board gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or its Special Committee concludes enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation) at least as favorable to the Company as the provisions of the Confidentiality Agreement as in good faitheffect immediately prior to the execution of this Agreement (provided, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputationhowever, that no such Acquisition Proposal is reasonably likely to lead to a Superior Proposal confidentiality agreement need include “standstill” provisions); and (D) at least two business days prior to furnishing any such nonpublic information to such Person, the Company receives from furnishes such Person an executed confidentiality agreement containing customary limitations on nonpublic information to Parent (to the use and disclosure of all extent such nonpublic written and oral information has not been previously furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent).
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties Parent shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receiptnot, directly or indirectly, shall cause its Subsidiaries and the respective officers, directors, financial advisers, attorneys and accountants of the Bookham Corporations to not, directly or indirectly and shall use its reasonable best efforts to ensure that the other Representatives of the Bookham Corporations do not, directly or indirectly
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any such inquiries, Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(ii) furnish any information regarding any of the Bookham Corporations to any Person in connection with or in response to an Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(iii) engage in discussions or negotiations or proposals with any Person relating to any Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to a Bookham Corporation; provided, however, that prior to the approval of the issuance of shares of Parent Common Stock in the Merger by the CompanyRequired Parent Stockholder Vote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing nonpublic information regarding the Bookham Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Parent Superior Offer that is submitted to Parent by such Person after the date hereof (iiand not withdrawn) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof if: (if availableA) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information todid not result from any breach of, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by inconsistent with, any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and provisions set forth in this Section 4.4(b); (B) the termination of this Agreement pursuant to Article XI, the Company Parent Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation having consulted with the Company’s (or the Special Committee’s, as applicable) its outside legal counsel, that failure to take such action would be inconsistent with a breach of the fiduciary obligations duties of the Parent Board to Parent’s stockholders under applicable law; (C) at least four business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Parent gives the Company Board written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions or non-solicitation provisions) at least as favorable to Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (D) at least two business days prior to furnishing any such nonpublic information to such Person, Parent furnishes such nonpublic information to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company’s shareholders under applicable Legal Requirements).
(c) Each of Parent and the Company shall promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal with respect to a Bookham Corporation or an Avanex Corporation, but only after following as the Superior case may be, or Acquisition Inquiry with respect to a Bookham Corporation or an Avanex Corporation, as the case may be) advise the other party to this Agreement orally and in writing of any such Acquisition Proposal Termination Proceduresor Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period. Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep the other party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Until the earlier Each of the Merger Effective Time Parent and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any discussions existing solicitation, discussion, negotiation or other action conducted by any as of the Acquired Companies or date of this Agreement with any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)or Acquisition Inquiry.
(e) The Each of Parent and the Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which any such party or any of the Acquired Companies its Subsidiaries is a partyparty or under which any such party or any of its Subsidiaries has any rights, and will use its reasonable best efforts to enforce or cause each such agreement to be enforced each such agreement in accordance with its terms at the request of Parentthe other party to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Avanex Corp), Agreement and Plan of Merger and Reorganization (Bookham, Inc.)
No Solicitation. (a) During Except with respect to this Agreement and the Pre-Closing Periodtransactions contemplated hereby, the no Company shall notEntity nor any Affiliate thereof nor any Representative thereof retained by any Company Entity shall, directly or indirectly, initiate, solicit, encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries or the making of any Acquisition Proposal. Notwithstanding anything herein to the contrary, Company and its Board of Directors shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, be permitted (i) solicitto the extent applicable, initiate, encourage, induce or facilitate any inquiries regarding, or to comply with Rule 14d-9 and Rule 14e-2 promulgated under the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead Exchange Act with regard to an Acquisition Proposal, (ii) furnish to engage in any nonpublic information regarding any of the Acquired Companiesdiscussions or negotiations with, or provide any access information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the booksextent that (a) Company stockholders shall not have approved adoption of this Agreement at the Stockholders' Meeting, records (b) Company's Board of Directors concludes in good faith and consistent with its fiduciary duties to Company's stockholders under applicable Law that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal, (c) prior to providing any information or personnel of any of the Acquired Companies, data to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company Company's Board of Directors receives from such Person an executed confidentiality agreement containing customary limitations on confidentiality terms at least as stringent as those contained in the use Confidentiality Agreement, and disclosure of all nonpublic written and oral (d) prior to providing any information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished data to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for entering into discussions or negotiations regarding with any Acquisition Proposal which any Person, Company's Board of the Acquired Companies or any Directors notifies Parent promptly of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, 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 proposals relating to continued with, any Acquisition Proposal by of its Representatives indicating, in connection with such notice, the Company, (ii) name of such Person and the material terms and conditions of such Acquisition Proposalany inquiries, indication, inquiry proposals or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity offers. Company agrees that it will promptly keep Parent informed of the Person making status and terms of any such Acquisition Proposal proposals or offers and (iv) the Company’s intention to furnish information status and terms of any such discussions or negotiations. Company agrees that it will, and will cause its officers, directors and Representatives to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any activities, discussions or negotiations existing solicitation, discussion, negotiation or other action conducted by any as of the Acquired Companies or date of this Agreement with any of their respective Representatives parties conducted heretofore with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Proposal. Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and that it will use its reasonable best efforts to enforce promptly inform its directors, officers, key employees, agents and Representatives of the obligations undertaken in this Section 8.8. Nothing in this Section 8.8 shall (x) permit Company to terminate this Agreement (except as specifically provided in Article 10) or cause to be enforced each such agreement at the request (y) affect any other obligation of ParentParent or Company under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Intervu Inc), Merger Agreement (Akamai Technologies Inc)
No Solicitation. (a) During the Pre-Closing PeriodThe Company, the Company Subsidiaries and their respective directors and officers shall not, and the Company shall direct its and the Company Subsidiaries’ other Representatives not to, (i) directly or indirectlyindirectly solicit, initiate or knowingly encourage the submission of any Company Takeover Proposal, (ii) enter into any agreement or understanding with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate the making of any proposal that constitutes, or could reasonably be expected to lead to, any Company Takeover Proposal. The Company shall, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, immediately (i) solicitcease all discussions and negotiations regarding any inquiry, initiate, encourage, induce proposal or facilitate any inquiries regardingoffer pending on the date of this Agreement that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (ii) request the makingprompt return or destruction of all confidential information previously furnished to any Person within the last six months for the purposes of evaluating a possible Company Takeover Proposal and (iii) terminate access to any physical or electronic data rooms relating to a possible Company Takeover Proposal. Notwithstanding anything to the contrary contained in the foregoing or any other provision of this Agreement, submissionprior to the Offer Closing Date, reaffirmation in response to a Company Takeover Proposal that did not result from a material breach of this Section 5.03(a) and that the Company Board determines, in good faith, after consultation with outside counsel and a financial advisor, constitutes or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition a Superior Company Proposal (a “Qualifying Company Takeover Proposal”), the Company may (iiA) furnish any nonpublic information regarding any with respect to the Company to the Person making such Qualifying Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement so long as the Company also concurrently provides Parent, in accordance with the terms of the Acquired CompaniesConfidentiality Agreement, or provide any access material non-public information with respect to the booksCompany and/or any Company Subsidiary furnished to such other Person which was not previously furnished to Parent, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, and (iiiB) engage in, continue or otherwise participate in any discussions or negotiations with such Person and its Representatives regarding such Qualifying Company Takeover Proposal including soliciting the making of a revised Qualifying Company Takeover Proposal; provided that the Company may only take the actions described in clauses (A) or (B) above, if the Company Board determines, in good faith, after consultation with outside counsel, that the failure to take any Person such action would be inconsistent with its fiduciary duties under applicable Law.
(b) Neither the Company Board nor any committee thereof shall (A) withdraw or modify in respect ofa manner adverse to Parent or Merger Sub, or otherwise cooperate with respect topropose publicly to withdraw or modify in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or (B) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Company Takeover Proposal or resolve or agree to take any such action or (vC) fail to include the Company Board Recommendation in the Schedule 14D-9 (any action described in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (ii) approve or enter into any letter of intent, arrangement, memorandum of understanding, agreement, agreement in principle principle, acquisition agreement, option agreement, merger agreement, joint venture agreement, partnership agreement or similar document other agreement providing for any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.03(a)), or resolve, agree or publicly propose to take any such action. Notwithstanding anything to contrary in the foregoing or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach other provision of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition ProposalAgreement, (Bx) the Company Board may, in response to an Intervening Event, take or its Special Committee concludes fail to take any of the actions specified in clause (A) of the definition of Adverse Recommendation Change (an “Intervening Event Adverse Recommendation Change”) if the Company Board determines, in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that the failure to take any such action would be inconsistent with the its fiduciary obligations of duties under applicable Law and (y) if the Company Board receives a Superior Company Proposal, the Company may terminate this Agreement pursuant to the Company’s shareholders under applicable Legal RequirementsSection 8.01(g) in accordance with Section 8.04(b); provided that, prior to so making an Intervening Event Adverse Recommendation Change or so terminating this Agreement, (C1) the Company Board or shall have given Parent at least four calendar days’ prior written notice of its Special Committee concludes intention to take such action and a description of the reasons for taking such action (which notice, in respect of a Superior Company Proposal, shall specify the identity of the Person who made such Superior Company Proposal and all of the material terms and conditions of such Superior Company Proposal and attach the most current version of the relevant transaction agreement), (2) the Company shall have negotiated, and shall have caused its Representatives to negotiate in good faith, with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to revise the terms of this Agreement in such a manner that would eliminate the need for taking such action (and in respect of a Superior Company Proposal, would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal), (3) following the end of such notice period, the Company Board shall have considered in good faith any revisions to this Agreement offered in writing by Parent in a manner that would form a binding contract if accepted by the Company, and shall have determined in good faith, after consultation with outside counsel, that failure to effect such Company Intervening Event Adverse Recommendation Change or to terminate this Agreement to accept a Superior Company Proposal would be inconsistent with its legal counsel and an independent financial advisor of nationally recognized reputationfiduciary duties under applicable Law and, with respect to a Superior Company Proposal, that such Acquisition Superior Company Proposal is reasonably likely continues to lead to constitute a Superior Company Proposal and (D4) prior in the event of any change to furnishing any of the financial or other material terms (including the form, amount and timing of payment of consideration) of such nonpublic information to such PersonSuperior Company Proposal, the Company receives from such Person shall, in each case, deliver to Parent an executed confidentiality agreement containing customary limitations on additional notice consistent with that described in clause (1) of this proviso and a renewed notice period under clause (1) of this proviso shall commence (except that the use and disclosure four-calendar-day notice period referred to in clause (1) of all nonpublic written and oral information furnished this proviso shall instead be equal to three calendar days) during which time the Company shall be required to comply with the requirements of this Section 5.03(b) anew with respect to such Person additional notice, including clauses (1) through (4) of this proviso.
(c) Nothing contained in this Section 5.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or on behalf Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders), including making any “stop-look-and-listen” communication to the stockholders of the Company, or (ii) making any disclosure to its stockholders if the Company and customary Board determines, in good faith, after consultation with outside counsel, that the failure to take any such action would be inconsistent with its fiduciary duties under applicable Law; provided that this Section 5.03(c) shall not be deemed to affect whether any such action (other than a recommendation against a Company Takeover Proposal or a “standstillstop-look-and-listen” provisions. As promptly as reasonably practicable following communication by the furnishing of nonpublic information Company Board pursuant to Rule 14d-9 promulgated under the Exchange Act) would otherwise constitute an Adverse Recommendation Change.
(d) In addition to the requirements set forth in paragraphs (a) and (b) of this Section 6.3(a)5.03, the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreementshall, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, as promptly as practicable and in any event within forty-eight (48) hours following the initial one business day after receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereofthereof, advise Parent orally and in writing of (i) any Company Takeover Proposal or any request for information or inquiry, proposal or offer that the receipt, directly Company reasonably believes could lead to or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition contemplates a Company Takeover Proposal by the Company, and (ii) the material terms and conditions of such Acquisition ProposalCompany Takeover Proposal or inquiry, indication, inquiry proposal or request, together with a copy thereof offer (if availableincluding any subsequent amendments or modifications thereto) or if not in writing, a written description thereof, (iii) and the identity of the Person making any such Acquisition Company Takeover Proposal or inquiry, proposal or offer. Commencing upon the provision of any notice referred to above, the Company and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company its Representatives shall keep Parent reasonably informed on a reasonably prompt basis as to any material developments regarding the status and details of any such Acquisition ProposalCompany Takeover Proposal or inquiry, indication, inquiry proposal or requestoffer (and any subsequent amendments or modifications thereto). None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and agrees that in the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Partiesevent any Company Subsidiary, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations Representative of the Company Board to or any Company Subsidiary, takes any action which, if taken by the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination Company would constitute a breach of this Agreement pursuant to Article XISection 5.03, the Company shall immediately (i) cease and cause be deemed to be terminated any existing solicitation, discussion, negotiation or other action conducted by any in breach of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in this Section 6.3(a)5.03.
(e) The Company agrees not to release or permit the release For purposes of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Celator Pharmaceuticals Inc)
No Solicitation. (a) During Each of Parent (except as it relates to the Concurrent Investment and any Parent Legacy Transaction) and the Company agrees that, during the Pre-Closing Period, the Company neither it nor any of its Subsidiaries shall, nor shall not, directly it or indirectly, and shall cause the other Acquired Companies, any of its Subsidiaries authorize any of its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (i) solicit, initiate, initiate or knowingly encourage, induce or facilitate any inquiries regardingthe communication, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition ProposalProposal or Acquisition Inquiry, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, such party to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition ProposalInquiry, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition ProposalProposal or Acquisition Inquiry, (iv) approve, endorse or recommend any Acquisition Proposal or (subject to Section 7.2 and Section 7.3), (v) execute or enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document intent or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed (vi) take any action that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry or (vii) publicly propose to do any violation of the restrictions set forth following; provided, however, that, notwithstanding anything contained in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting 6.4 and subject to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of compliance with this Section 6.3(a) by the Company. Notwithstanding the foregoing6.4, from the date hereof and prior to obtaining the adoption of this Agreement by the Required Company Shareholder VoteParent Stockholder Approval, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing Parent may furnish nonpublic information regarding the Acquired Companies Parent and its Subsidiaries to, or entering and enter into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Parent Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes determines in good faith, after consultation with its financial advisors and outside legal counsel and an independent financial advisor of nationally recognized reputationcounsel, that such Acquisition Proposal constitutes, or is reasonably likely to lead to result in, a Superior Offer (and is not withdrawn) if: (A) such Acquisition Proposal was not obtained or made as a direct or indirect result of any breach of this Agreement, (B) the Parent Board concludes in good faith, after consulting with outside counsel, that the failure to take such action would reasonably be expected to be inconsistent with the Parent Board’s fiduciary duties under applicable Law, (C) at least two (2) Business Days prior to initially furnishing any such nonpublic information to, or enter into discussions with, such Person, Parent provides the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, (D) Parent receives from such Person an executed Acceptable Confidentiality Agreement and (E) at least two (2) Business Days prior to furnishing any such nonpublic information to such Person, Parent furnishes such nonpublic information to the Company receives from (to the extent such Person an executed confidentiality agreement containing customary limitations on information has not been previously furnished by Parent to the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf Company). Without limiting the generality of the Company foregoing, each party acknowledges and customary “standstill” provisions. As promptly as reasonably practicable following agrees that, in the furnishing event any Representative of nonpublic information pursuant to such party takes any action that, if taken by such party, would constitute a breach of this Section 6.3(a)6.4 by such party, the Company taking of such action by such Representative shall provide be deemed to Parent any nonpublic information concerning any constitute a breach of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parentthis Section 6.4 by such party for purposes of this Agreement.
(b) From and after If any party or any Representative of such party receives an Acquisition Proposal or Acquisition Inquiry at any time during the execution of this AgreementPre-Closing Period, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties then such party shall promptly, promptly (and in any no event within forty-eight later than one (481) hours following the initial receipt by any Acquired Company Business Day after such party becomes aware of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any such Acquisition Proposal which any of or Acquisition Inquiry) advise the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent other party orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, or Acquisition Inquiry (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Personterms thereof). The Company Such party shall keep Parent the other party reasonably informed on a prompt basis as with respect to any material developments regarding the status and terms of any such Acquisition Proposal, indication, inquiry Proposal or request. None of the Acquired Companies shall, after the date hereof, enter into Acquisition Inquiry and any confidentiality agreement that would prohibit them from providing such information to Parentmaterial modification or material proposed modification thereto.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company Each party shall immediately (i) cease and cause to be terminated any existing solicitationdiscussions, discussion, negotiation or other action conducted by negotiations and communications with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective or Acquisition Inquiry as of the date hereof, (ii) of this Agreement and request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release destruction or permit the release return of any nonpublic information provided to such Person from, or to waive or permit as soon as reasonably practicable after the waiver date of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parentthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Carisma Therapeutics Inc.), Merger Agreement (Ocugen, Inc.)
No Solicitation. (a) During From the Pre-Closing Periodexecution and delivery of this Agreement and until the earlier to occur of the Effective Time and termination of this Agreement pursuant to Section 7.1 hereof, the Company Seagate and its Subsidiaries shall not, directly or indirectly, and they shall cause the their respective officers, directors, affiliates or employees or any investment banker, attorney or other Acquired Companies, its Representatives and the Representatives advisor or representative retained by any of the other Acquired Companies them not to, directly or indirectly, indirectly (i) solicit, initiate, encourage, encourage or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Seagate Acquisition Proposal (as defined in Section 5.4(b) hereof), (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Seagate Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate person with respect to, to any Seagate Acquisition Proposal, (iv) subject to the terms of Section 5.2(c) hereof, approve, endorse or recommend any Seagate Acquisition Proposal Proposal, or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Seagate Acquisition Transaction. Without limiting Transaction (as defined in Section 5.4(b) hereof); provided, however, that until the foregoingdate on which this Agreement is approved by the requisite vote of the stockholders of Seagate, it is agreed that the terms of this Section 5.4(a) shall not prohibit Seagate from furnishing information regarding Seagate and its Subsidiaries to, entering into a confidentiality or non-disclosure agreement with, or entering into discussions with, any violation person or group in response to a Seagate Superior Offer submitted by such person or group (and not withdrawn) if (a) neither Seagate nor any agents or representative of Seagate and its Subsidiaries shall have violated any of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b5.4(a), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (Bb) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee Directors of Seagate concludes in good faith, after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputationcounsel, that such Acquisition Proposal action is reasonably likely necessary in order for the Board of Directors of Seagate to lead comply with its fiduciary obligations to a Superior Proposal and the stockholders of Seagate under applicable Law, (Dc) prior to furnishing any such nonpublic information to such Person, the Company Seagate receives from such Person person or group an executed confidentiality or non-disclosure agreement containing customary limitations on the use and disclosure of all nonpublic non-public written and oral information furnished to such Person person or group by or on behalf of Seagate and containing terms no less favorable to the Company disclosing party than the terms of the Confidentiality Agreement (including with respect to any standstill arrangements, unless the standstill arrangements in the Confidentiality Agreement are waived and customary “standstill” provisions. As (d) prior to furnishing any such non-public information to such person or group, or entering into negotiations or discussions, Seller notifies Purchaser promptly as reasonably practicable following the furnishing of nonpublic such inquiries, proposals or offers received by, any such information pursuant requested from, or any such discussions or negotiations sought to this Section 6.3(a)be initiated or continued with, any of its representatives indicating, in connection with such notice, the Company shall provide to Parent any nonpublic information concerning any name of the Acquired Companies that is person and the terms and conditions of any inquiries, proposals or offers, and furnishes such non-public information to Veritas to the extent such information has not been previously furnished to Veritas. Seagate and its subsidiaries shall immediately cease any third Person and all existing activities, discussions or its Representatives which was not previously provided negotiations with any parties conducted heretofore with respect to Parentany Seagate Acquisition Proposal.
(b) From For all purposes of and after the execution of under this Agreement, except the term "Seagate Acquisition Proposal" shall mean any offer or proposal (other than an offer or proposal by Veritas) relating to any Seagate Acquisition Transaction. For all purposes of and under this Agreement, "Seagate Acquisition Transaction" shall mean any transaction or series of related transactions, other than the extent transactions contemplated by this Agreement or the OD Documents, involving: (i) any acquisition or purchase from Seagate by any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than fifteen percent (15%) in interest of the total outstanding voting securities of Seagate, or any tender offer or exchange offer that doing so if consummated would result in a breach of its fiduciary duties, each any person or "group" (as defined under Section 13(d) of the Company Parties shall promptly, Exchange Act and in any event within forty-eight the rules and regulations promulgated thereunder) beneficially owning more than fifteen percent (4815%) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies total outstanding voting securities of Seagate, or any merger, consolidation, business combination or similar transaction involving Seagate pursuant to which the stockholders of Seagate immediately preceding such transaction would hold less than fifteen percent (15%) of the equity interests in the surviving or resulting entity of such transaction; (ii) any sale, lease (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposalbusiness), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than fifteen percent (15%) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any assets and properties of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal Seagate; or (iv) permit the Acquired Companies to take any action to exempt liquidation or make not subject to dissolution of Seagate, excluding, in all cases any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier disposition of the Required Company Stockholder Vote and assets covered by the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresOD Documents.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Seagate Technology Malaysia Holding Co Cayman Islands), Agreement and Plan of Merger and Reorganization (Seagate Technology Holdings)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement until the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall notagrees that it will not and will not permit any of its Subsidiaries, directly or indirectlyany of its or their officers, and shall cause directors, employees, representatives, agents, or Affiliates, including, without limitation, any investment banker, attorney or accountant retained by the other Acquired CompaniesCompany or any of its Subsidiaries (collectively, its Representatives and the Representatives of the other Acquired Companies not “Representatives”) to, directly or indirectly, (i) initiate, solicit, initiateencourage or otherwise facilitate (including by way of furnishing information or otherwise), encourage, induce or facilitate any inquiries regardingor the making of any proposal or offer that constitutes, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could may reasonably be expected to lead to an Acquisition ProposalProposal (as defined below), or (ii) furnish any nonpublic information regarding any of the Acquired Companies, enter into or provide any access to the books, records maintain or personnel of any of the Acquired Companies, to continue discussions or negotiate with any Person in connection with furtherance of such inquiries or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to obtain an Acquisition Proposal, or (iii) engage inagree to, continue or otherwise participate in any discussions or negotiations with any Person in respect ofapprove, recommend, or otherwise cooperate with respect to, endorse any Acquisition Proposal, (iv) approveor resolve, endorse agree or recommend publicly propose to take any Acquisition Proposal or (v) enter into such action and the Company shall promptly notify Acquiror of any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document such inquiries and proposals received by the Company or any Contract contemplating of its Subsidiaries or otherwise Representatives, relating to any Acquisition Transaction. Without limiting the foregoingof such matters, it is agreed provided, however, that at any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and time prior to the adoption of this Agreement by the Required Company Shareholder Requisite Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies toBoard may, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines, in good faith, after consultation with outside counsel and financial advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal (as defined below), and which Acquisition Proposal did not result from a breach of this Section 5.3(a), (x) provide access or furnish information with respect to the Company’s Company and its Subsidiaries to the Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement and (y) engage in discussions or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent negotiations with the fiduciary obligations Person making such Acquisition Proposal (and its representatives) regarding such Acquisition Proposal; provided further, however, that, subject to the right of the Company Board to withhold information where such disclosure would violate or prejudice the Company’s shareholders under applicable Legal Requirements, (C) the Company Board rights of its or its Special Committee concludes in good faithSubsidiaries’ clients, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, jeopardize the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf attorney-client privilege of the Company and customary “standstill” provisions. As promptly as reasonably practicable following or its Subsidiaries or contravene any law or binding agreement entered into prior to the furnishing date of nonpublic information pursuant to this Section 6.3(a)Agreement, the Company shall promptly provide to Parent Acquiror any nonpublic non-public information concerning any of the Acquired Companies that is furnished provided to any third the Person making such Acquisition Proposal or its Representatives representatives which was not previously provided to ParentAcquiror. The Company shall also, within one Business Day, notify Acquiror of the receipt of any Acquisition Proposal and the material terms and conditions thereof. Further, the Company shall promptly keep Acquiror advised on a substantially current basis of any developments relating to any such Acquisition Proposal.
(b) From and after the execution For purposes of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any “Acquisition Proposal, any indication by any Person considering making ” means an Acquisition Proposal, any request for information relating to offer or proposal regarding any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person following (other than the Buyer Parties and their respective Affiliatestransactions contemplated by this Agreement) including the Company or its Subsidiaries: (i) any merger, reorganization, consolidation, share exchange, recapitalization, business combination, liquidation, dissolution, or other similar transaction involving, or, an acquisition in any manner of, all or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier significant portion of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XIassets or any significant equity interest of, the Company Board or any of its Special Committee may take one Subsidiaries, in a single transaction or more series of related transactions which could reasonably be expected to interfere with the completion of the actions described in the preceding clauses Merger; or (iii) – (iv) in response to a Superior Proposal if the Company Board any tender offer or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations exchange offer for any outstanding shares of capital stock of the Company Board to or the Company’s shareholders filing of a registration statement under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresSecurities Act in connection therewith.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (VeriChip CORP), Merger Agreement (Steel Vault Corp)
No Solicitation. (a) During the Pre-Closing Period, the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution date of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to Agreement until the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI9 hereof, the Company Seller Entities shall immediately not, and shall cause their respective Representatives not to, directly or indirectly:
(i) cease and cause to be terminated solicit, initiate or take any existing solicitation, discussion, negotiation or other action conducted to knowingly facilitate any inquiry in connection with or the making of any proposal from any Person (other than Buyer or any of its Representatives) that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal (it being understood that actions taken pursuant to the requirements of this Agreement shall not be deemed a knowing facilitation of such an inquiry for purposes of the foregoing covenant and that the Seller Entities may make disclosures of non-public information to the extent they are required to make such disclosures pursuant to applicable law;
(ii) enter into, explore, maintain, participate in or continue any discussion or negotiation with any Person (other than Buyer or any of its Representatives) regarding an Acquisition Proposal, or otherwise knowingly cooperate in any way with any effort or attempt by any other Person (other than Buyer or any of its Representatives) to make or effect an Acquisition Proposal;
(iii) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal; or
(iv) authorize or permit any Representative of a Seller Entity to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the board of directors of Seller, prior to approval of this Agreement by the Seller’s shareholders at the Seller Shareholders’ Meeting, from, subject to compliance with Section 7.3(c), furnishing information to, or engaging in discussions or negotiations with, any Person that makes an unsolicited bona fide written Acquisition Proposal (which did not result from a breach of this Section 7.3) if (A) the board of directors of Seller determines in good faith, after consultation with outside legal counsel, that such action is necessary for the board of directors of Seller to comply with its fiduciary duties under applicable Law, (B) the board of directors of Seller determines in good faith, after consultation with its financial advisor, that the Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (C) prior to furnishing such information to, or engaging in discussions or negotiations with, such Person, Seller receives from such Person an executed confidentiality agreement (which agreement shall be provided to Buyer for information purposes) with terms no less favorable to Seller than those contained in the Non-Disclosure Agreement.
(b) From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Article 9, if the board of directors of Seller is entitled to furnish information to, or engage in discussions or negotiations with, any Person on the terms contemplated in Section 7.3(a) above, the board of directors of Seller may, prior to the approval of this Agreement by Seller’s shareholders at the Seller Shareholders’ Meeting, subject to compliance with Section 7.3(c), terminate this Agreement in respect of any Acquisition Proposal pursuant to the termination provisions set forth in Article 9 hereof if (A) the board of directors of Seller shall have determined in good faith, after consultation with its financial advisor, that the Acquisition Proposal constitutes a Superior Proposal and (B) the board of directors of Seller shall have determined in good faith, after consultation with outside legal counsel, that such action is necessary for the board of directors of Seller to comply with its fiduciary duties under applicable Law.
(c) Seller (i) will promptly (but in any event within two business days) notify Buyer orally and in writing of the receipt of any Acquisition Proposal or any inquiry regarding the making of an Acquisition Proposal including any request for non-public information, the terms and conditions of such request, Acquisition Proposal or inquiry and the identity of the Person making such request, Acquisition Proposal or inquiry and (ii) will keep Buyer informed of the status and details (including amendments and proposed amendments) of any such request, Acquisition Proposal or inquiry. Prior to taking any of the Acquired Companies actions referred to in Section 7.3(a), Seller shall promptly (but in any event within one day) notify Buyer orally and in writing of any action it proposes to take with respect to such Acquisition Proposal. After taking any such action, Seller shall promptly advise Buyer of the status of such action as developments arise or as requested by Buyer. Without limiting the foregoing, at least three business days (the “Three-Day Period”) prior to taking any of their respective Representatives the actions referred to in Section 7.3(b), Seller shall notify Buyer of any such action it proposes to take and, during the Three-Day Period, Seller shall negotiate in good faith with Buyer with respect to any Acquisition Proposal effective as of revised proposal to acquire the date hereofSeller that Buyer may make prior to or during the Three-Day Period.
(d) Nothing contained in this Agreement shall prevent Seller from (i) complying with Rules 14e-2 and 14d-9 under the Exchange Act with regard to a tender or exchange offer, (ii) request that all confidential information previously furnished making a “stop-look-and-listen” communication to any third party be returned promptly its shareholders of the nature contemplated by Rule 14d-9 under the Exchange Act and (iii) deny access making such other disclosures to any data room containing any Seller’s shareholders, and taking such information other actions, as are required by Law (provided however, with respect to any third party each of the foregoing clauses (other than the Buyer Parties and their respective Representativesi), in each case(ii) and (iii), subject that Seller shall not, except as permitted by Section 7.3(b) hereof, propose to the Company’s rights and obligations in Section 6.3(aapprove or recommend any Acquisition Proposal).
(e) The Company agrees not Seller Entities shall immediately cease and cause their respective Representatives to release cease any and all existing activities, discussions or permit the release of negotiations with any Person from, or parties (other than Buyer and its Representatives) conducted heretofore with respect to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a partyAcquisition Proposal, and will shall use its their reasonable best efforts to enforce cause any such parties in possession of confidential information about the Seller Entities that was furnished by or cause on behalf of Seller to be enforced each return or destroy all such agreement at information in the request possession of Parentany such party or its representatives.
Appears in 2 contracts
Sources: Merger Agreement (SCBT Financial Corp), Merger Agreement (TSB Financial CORP)
No Solicitation. (a) During From the Pre-Closing Periodexecution and delivery of this Agreement and until the earlier to occur of the Effective Time and termination of this Agreement pursuant to Section 7.1 hereof, the Company Seagate and its Subsidiaries shall not, directly or indirectly, and they shall cause the their respective officers, directors, affiliates or employees or any investment banker, attorney or other Acquired Companies, its Representatives and the Representatives advisor or representative retained by any of the other Acquired Companies them not to, directly or indirectly, indirectly (i) solicit, initiate, encourage, encourage or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Seagate Acquisition Proposal (as defined in Section 5.4(b) hereof), (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Seagate Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate person with respect to, to any Seagate Acquisition Proposal, (iv) subject to the terms of Section 5.2(c) hereof, approve, endorse or recommend any Seagate Acquisition Proposal Proposal, or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Seagate Acquisition Transaction. Without limiting Transaction (as defined in Section 5.4(b) hereof); provided, however, that until the foregoingdate on which this Agreement is approved by the requisite vote of the stockholders of Seagate, it is agreed that the terms of this Section 5.4(a) shall not prohibit Seagate from furnishing information regarding Seagate and its Subsidiaries to, entering into a confidentiality or non-disclosure agreement with, or entering into discussions with, any violation person or group in response to a Seagate Superior Offer submitted by such person or group (and not withdrawn) if (a) neither Seagate nor any agents or representative of Seagate and its Subsidiaries shall have violated any of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b5.4(a), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (Bb) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee Directors of Seagate concludes in good faith, after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputationcounsel, that such Acquisition Proposal action is reasonably likely necessary in order for the Board of Directors of Seagate to lead comply with its fiduciary obligations to a Superior Proposal and the stockholders of Seagate under applicable Law, (Dc) prior to furnishing any such nonpublic information to such Person, the Company Seagate receives from such Person person or group an executed confidentiality or non-disclosure agreement containing customary limitations on the use and disclosure of all nonpublic non-public written and oral information furnished to such Person person or group by or on behalf of Seagate and containing terms no less favorable to the Company disclosing party than the terms of the Confidentiality Agreement (including with respect to any standstill arrangements, unless the standstill arrangements in the Confidentiality Agreement are waived and customary “standstill” provisions. As (d) prior to furnishing any such non-public information to such person or group, or entering into negotiations or discussions, Seller notifies Purchaser promptly as reasonably practicable following the furnishing of nonpublic such inquiries, proposals or offers received by, any such information pursuant requested from, or any such discussions or negotiations sought to this Section 6.3(a)be initiated or continued with, any of its representatives indicating, in connection with such notice, the Company shall provide to Parent any nonpublic information concerning any name of the Acquired Companies that is person and the terms and conditions of any inquiries, proposals or offers, and furnishes such non-public information to Veritas to the extent such information has not been previously furnished to Veritas. Seagate and its subsidiaries shall immediately cease any third Person and all existing activities, discussions or its Representatives which was not previously provided negotiations with any parties conducted heretofore with respect to Parentany Seagate Acquisition Proposal.
(b) From For all purposes of and after the execution of under this Agreement, except the term "SEAGATE ACQUISITION PROPOSAL" shall mean any offer or proposal (other than an offer or proposal by Veritas) relating to any Seagate Acquisition Transaction. For all purposes of and under this Agreement, "SEAGATE ACQUISITION TRANSACTION" shall mean any transaction or series of related transactions, other than the extent transactions contemplated by this Agreement or the OD Documents, involving: (i) any acquisition or purchase from Seagate by any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than fifteen percent (15%) in interest of the total outstanding voting securities of Seagate, or any tender offer or exchange offer that doing so if consummated would result in a breach of its fiduciary duties, each any person or "group" (as defined under Section 13(d) of the Company Parties shall promptly, Exchange Act and in any event within forty-eight the rules and regulations promulgated thereunder) beneficially owning more than fifteen percent (4815%) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies total outstanding voting securities of Seagate, or any merger, consolidation, business combination or similar transaction involving Seagate pursuant to which the stockholders of Seagate immediately preceding such transaction would hold less than fifteen percent (15%) of the equity interests in the surviving or resulting entity of such transaction; (ii) any sale, lease (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposalbusiness), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than fifteen percent (15%) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any assets and properties of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal Seagate; or (iv) permit the Acquired Companies to take any action to exempt liquidation or make not subject to dissolution of Seagate, excluding, in all cases any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier disposition of the Required Company Stockholder Vote and assets covered by the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresOD Documents.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Veritas Software Corp /De/), Agreement and Plan of Merger and Reorganization (Seagate Technology Inc)
No Solicitation. (a) During Until the Pre-Closing Periodearlier of the Effective Time or the termination of this Agreement, the Company shall notagrees that neither it nor any of its subsidiaries, directly nor any of the officers, directors or indirectlyemployees of it or its subsidiaries shall, and it shall direct and use its best efforts to cause its and its subsidiaries' representatives and agents (including, without limitation, any investment banker, attorney or accountant retained by the other Acquired CompaniesCompany or any of its subsidiaries), its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encouragesolicit or knowingly encourage (including by way of furnishing non-public information or assistance), induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action knowingly to facilitate, any inquiries or the making of any proposal that could constitutes, or may reasonably be expected to lead to to, an Acquisition Proposal, Proposal (ii) furnish any nonpublic information regarding any of the Acquired Companiesas defined below), or provide enter into or maintain or continue discussions or negotiate with any access person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal; provided, however, that nothing in this Agreement shall prohibit the books, records or personnel of any of Company Board from (i) complying with Rule 14e-2 promulgated under the Acquired Companies, to any Person in connection Exchange Act with or in response regard to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iiiii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written person or entity that makes an unsolicited Acquisition Proposal that is submitted after the date of this Agreement, if, in the case referred to in clause (ii) above, the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faithBoard, after consultation with and based upon the Company’s or the Special Committee’s outside advice of independent legal counsel, determines in good faith that failure to take such action would is likely to be inconsistent with the fiduciary obligations of required for the Company Board to the Company’s shareholders comply with its fiduciary duties to stockholders under applicable Legal Requirementslaw and, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any taking such nonpublic information to such Personaction, the Company receives from such Person person or entity an executed confidentiality agreement containing in reasonably customary limitations on form. For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer or proposal regarding any of the use and disclosure following (other than the transactions contemplated by this Agreement) involving the Company or any of its subsidiaries: (w) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (x) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all nonpublic written and oral information furnished to such Person by or on behalf substantially all the assets of the Company and customary “standstill” provisions. As promptly its subsidiaries, taken as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modifywhole, in a manner adverse to the Buyer Parties, single transaction or fail to make, the Company Board Recommendation, series of related transactions; (iiy) approve, authorize any tender offer or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one exchange offer for 20 percent or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the outstanding shares of Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (Common Stock or the Special Committee’sfiling of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, as applicable) outside legal counsel, that failure plan or intention to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by do any of the Acquired Companies foregoing or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which engage in any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parentforegoing.
Appears in 2 contracts
Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (St Jude Medical Inc)
No Solicitation. (a) During the Pre-Closing Period, the Company Remainco shall not, directly or indirectly, and Remainco shall cause its Subsidiaries and its and their respective officers, directors and employees not to, and use reasonable best efforts to cause the respective other Acquired Companies, its Representatives and the Representatives of the other Acquired Remainco Companies not to, directly or indirectly, : (i) solicit, initiate, encourage, induce knowingly encourage or knowingly facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected Acquisition Inquiry with respect to lead to an Acquisition ProposalRemainco, the Spinco Companies or the Spinco Business; (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Remainco Companies to any Person in connection with or in response to an any Acquisition Proposal or an inquiry any Acquisition Inquiry with respect to Remainco, the Spinco Companies or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, the Spinco Business; (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, relating to any Acquisition Proposal or otherwise cooperate any Acquisition Inquiry with respect toto Remainco, any Acquisition Proposal, the Spinco Companies or the Spinco Business (other than to state that they are not currently permitted to have discussions); (iv) approve, endorse or recommend any Acquisition Proposal or any Acquisition Inquiry with respect to Remainco, the Spinco Companies or the Spinco Business; (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting Transaction or any Acquisition Inquiry with respect to Remainco, the foregoingSpinco Companies or the Spinco Business; or (vi) reimburse or agree to reimburse the expenses of any other Person (other than Remainco’s Representatives) in connection with any Acquisition Proposal or any Acquisition Inquiry with respect to Remainco, it is agreed that any violation the Spinco Companies or the Spinco Business.
(b) During the Pre-Closing Period, RMT Partner shall not, directly or indirectly, and RMT Partner shall cause its Subsidiaries and its and their respective officers, directors and employees not to, and use reasonable best efforts to cause the respective other Representatives of the restrictions set forth in this Section 6.3(aRMT Partner Companies not to, directly or indirectly: (i) by solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Representative of Acquisition Proposal or any Acquisition Inquiry with respect to RMT Partner; (ii) furnish any information regarding any of the Acquired CompaniesRMT Partner Companies to any Person in connection with or in response to any Acquisition Proposal or any Acquisition Inquiry with respect to RMT Partner; (iii) engage in discussions or negotiations with any Person relating to any Acquisition Proposal or any Acquisition Inquiry with respect to RMT Partner (other than to state that they are not currently permitted to have discussions); (iv) approve, whether endorse or not such Person is purporting recommend any Acquisition Proposal or any Acquisition Inquiry with respect to act on behalf RMT Partner; (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction or any Acquisition Inquiry with respect to RMT Partner; or (vi) reimburse or agree to reimburse the expenses of any of other Person (other than RMT Partner’s Representatives) in connection with any Acquisition Proposal with respect to RMT Partner or any Acquisition Inquiry with respect to RMT Partner.
(c) Notwithstanding anything in Section 4.5(b), if at any time after the Acquired Companies or otherwise, shall be deemed to be a breach execution of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof Agreement and prior to the adoption approval of this Agreement the issuance of shares of RMT Partner Common Stock pursuant to the Merger by the Required Company Shareholder RMT Partner Stockholder Vote (and in no event after obtaining the Required RMT Partner Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to (i) RMT Partner shall receive a bona fide written Acquisition Proposal with respect to RMT Partner that is submitted to the Company by such Person during such period did not result from a breach of Section 4.5(b) (other than an immaterial breach) and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (Bii) the Company RMT Partner Board or its Special Committee concludes determines in good faith, faith after consultation with the CompanyRMT Partner’s or the Special Committee’s financial advisor and outside legal counsel, counsel that such Acquisition Proposal is or would reasonably be expected to lead to a RMT Partner Superior Proposal and the failure to take such action the following actions would reasonably be expected to be inconsistent with the fiduciary obligations duties of the Company RMT Partner Board to the Company’s shareholders under applicable Legal RequirementsRequirement, then RMT Partner may (CA) furnish information regarding the Company Board RMT Partner Companies (it being understood that in no event shall any of the RMT Partner Companies or their respective Representatives furnish any information regarding Remainco or any of its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that Subsidiaries (including the Spinco Companies) or the Spinco Business) to the Person making such Acquisition Proposal is reasonably likely to lead to a Superior and its Representatives or (B) enter into discussions and negotiations with the Person making such Acquisition Proposal and its Representatives, provided that (D1) prior to furnishing any such nonpublic information to such Person, the Company RMT Partner receives from such Person an executed confidentiality agreement containing that contains customary limitations on provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable in the use aggregate to RMT Partner as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement and disclosure allows for RMT Partner to comply with its obligations in this Agreement; (2) RMT Partner gives Remainco prompt written notice of all nonpublic written any such determination by the RMT Partner Board (which notice shall be no later than 24 hours after such determination by the RMT Partner Board); and oral (3) RMT Partner furnishes or Makes Available any non-public information furnished or Made Available to such Person to Remainco (to the extent such information has not been previously furnished or Made Available by RMT Partner to Remainco) prior to or on behalf of substantially concurrent with the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant time it is provided or made available to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parentsuch Person.
(bd) From Except as expressly permitted by Section 5.2, during the Pre-Closing Period, the RMT Partner Board (or any committee thereof) shall not (i) effect RMT Partner Change in Recommendation, (ii) adopt, approve, endorse, declare advisable or recommend to RMT Partner’s shareholders an Acquisition Proposal with respect to RMT Partner other than the Contemplated Transactions, (iii) fail to publicly reaffirm its recommendation of this Agreement within five (5) Business Days following receipt of a written request by Remainco to provide such reaffirmation after an Acquisition Proposal shall have been publicly disclosed or shall have become publicly known (provided that Remainco may only make such request once with respect to any Acquisition Proposal with respect to RMT Partner and once with respect to each material amendment to any Acquisition Proposal with respect to RMT Partner), (iv) fail to include in the Joint Proxy Statement/Prospectus the RMT Board Partner Recommendation or include in the Joint Proxy Statement/Prospectus any proposal to vote upon or consider any Acquisition Proposal with respect to RMT Partner other than the Contemplated Transactions or (v) fail to recommend against a competing tender offer or exchange offer for twenty percent (20%) or more of the outstanding capital stock of RMT Partner within ten (10) Business Days after commencement of such offer (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders).
(e) Notwithstanding anything in Section 4.5(a), if at any time after the execution of this AgreementAgreement and prior to obtaining the Required Remainco Stockholder Vote (and in no event after obtaining the Required Remainco Stockholder Vote), except (i) Remainco shall receive a bona fide written Acquisition Proposal with respect to the extent Remainco that doing so would did not result in from a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48Section 4.5(a) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business an immaterial breach) and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms Remainco Board determines in good faith after consultation with Remainco’s financial advisor and conditions of outside legal counsel that such Acquisition ProposalProposal is or would reasonably be expected to lead to a Remainco Superior Proposal and the failure to take the following actions would reasonably be expected to be inconsistent with the fiduciary duties of the Remainco Board under applicable Legal Requirement, indicationthen Remainco may (A) furnish information regarding the Remainco Companies or Spinco Companies (it being understood that in no event shall any of the Remainco Companies, inquiry Spinco Companies or request, together with a copy thereof (if available) their respective Representatives furnish any information regarding RMT Partner or if not in writing, a written description thereof, (iii) the identity any of its Subsidiaries to the Person making such Acquisition Proposal and its Representatives) or (ivB) the Company’s intention to furnish information to, or enter into discussions or and negotiations withwith the Person making such Acquisition Proposal and its Representatives, provided that (1) prior to furnishing any such information to such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any , Remainco receives from such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any Person an executed confidentiality agreement that would prohibit them from providing contains customary provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable in the aggregate to Remainco as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement and allows for Remainco to comply with its obligations in this Agreement; (2) Remainco gives RMT Partner prompt written notice of any such determination by the Remainco Board (which notice shall be no later than 24 hours after such determination by the Remainco Board); and (3) Remainco furnishes or Makes Available any non-public information furnished or Made Available to such Person to RMT Partner (to the extent such information has not been previously furnished or Made Available by Remainco to ParentRMT Partner) prior to or substantially concurrent with the time it is provided or made available to such Person.
(cf) The Company Except as expressly permitted by Section 5.3, during the Pre-Closing Period, the Remainco Board and the Special Committee may (or any committee thereof) shall not (i) withdraw, qualify or modify, effect a Remainco Change in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) adopt, approve, authorize endorse, declare advisable or recommend, or propose publicly or approve, authorize or recommend, recommend to Remainco’s stockholders an Acquisition ProposalProposal with respect to Remainco or Spinco other than the Contemplated Transactions, (iii) authorize fail to publicly reaffirm its recommendation of this Agreement within five (5) Business Days following receipt of a written request by RMT Partner to provide such reaffirmation after an Acquisition Proposal shall have been publicly disclosed or permit shall have become publicly known (provided that RMT Partner may only make such request once with respect to any Acquisition Proposal with respect to Remainco or Spinco and once with respect to each material amendment to any Acquisition Proposal with respect to Remainco or Spinco, (iv) fail to include in the Joint Proxy Statement/Prospectus the Remainco Board Recommendation or include in the Joint Proxy Statement/Prospectus any proposal to vote upon or consider any Acquisition Proposal with respect to Remainco or Spinco other than the Contemplated Transactions or (v) fail to recommend against a competing tender offer or exchange offer for twenty percent (20%) or more of the outstanding capital stock of Remainco within ten (10) Business Days after commencement of such offer (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders).
(g) Each of RMT Partner and Remainco shall promptly (and in no event later than 24 hours) after receipt of any Acquisition Proposal with respect to either (i) Remainco, the Spinco Business or a Spinco Company or (ii) RMT Partner, as the case may be, or Acquisition Inquiry with respect to enter either (A) Remainco, the Spinco Business or a Spinco Company or (B) RMT Partner, as the case may be, advise the other party to this Agreement orally and in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof, including a copy of any written Acquisition Proposal or Acquisition Inquiry and any other agreements proposed to be entered into by RMT Partner or Remainco or any agreement (an “of their respective Subsidiaries, as the case may be, and the Person making such Acquisition Agreement”Proposal or Acquisition Inquiry or any of its Subsidiaries or its or their respective Representatives, as the case may be, and any documentation in respect of such Acquisition Proposal or Acquisition Inquiry received from the proponent thereof or its Representative) contemplating that is made or submitted by any Person during the Pre-Closing Period. Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep the other party reasonably informed on a reasonably prompt basis with respect to: (iv1) permit the Acquired Companies status of any such Acquisition Proposal or Acquisition Inquiry, including, with respect to take an Acquisition Proposal or Acquisition Inquiry received by RMT Partner only, any action to exempt negotiations with respect thereto and (2) the status and terms of any material modification or make not subject proposed material modification thereto, copies of any written materials (including e-mail correspondence) received from the proponent thereof or its Representative proposing any such changes to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” such Acquisition Proposal or other anti-takeover Legal Requirements Acquisition Inquiry and drafts of any agreements proposed to be entered into by RMT Partner or any “excess share” of its respective Subsidiaries, as the case may be, and the Person making such Acquisition Proposal or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, Acquisition Inquiry or any Person (other than the Buyer Parties and of its Subsidiaries or its or their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’sRepresentatives, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedurescase may be.
(dh) Until the earlier Each of the Merger Effective Time RMT Partner and the termination of this Agreement pursuant Remainco shall, and shall cause their respective Subsidiaries and use reasonable best efforts to Article XIcause their respective Representatives to, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions conducted on or other action conducted by before the date of this Agreement with any of the Acquired Companies or any of their respective Representatives with respect Person that relate to any Acquisition Proposal effective as of with respect to either (i) Remainco, the date hereof, Spinco Business or a Spinco Company or (ii) RMT Partner, as the case may be, or Acquisition Inquiry with respect to either (A) the Spinco Business, the Spinco Assets or a Spinco Company or (B) RMT Partner, as the case may be, and request that the prompt return or destruction of all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)furnished.
(ei) The Company Each of Remainco and RMT Partner agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which any such party or any of the Acquired Companies its Subsidiaries is a partyparty or under which any such party or any of its Subsidiaries has any rights, and will use its commercially reasonable best efforts to enforce or cause each such agreement to be enforced each such agreement at the request of Parentthe other party to this Agreement except, in the case of (x) RMT Partner, to the extent that the RMT Partner Board determines in good faith, after having consulted with its outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the RMT Partner Board to its stockholders under applicable Legal Requirement and (y) Remainco, to the extent that the Remainco Board determines in good faith, after having consulted with its outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Remainco Board to its stockholders under applicable Legal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Regal Beloit Corp), Merger Agreement (Rexnord Corp)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, not directly or indirectlyindirectly do, and shall cause the other Acquired Companies, its Representatives and the Representatives ensure that no Representative of any of the other Acquired Companies not to, Corporations directly or indirectlyindirectly does, any of the following: (i) solicit, initiate, initiate or knowingly encourage, induce or facilitate any inquiries regardingthe communication, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could would reasonably be expected to lead to an Acquisition Proposal, Proposal or Acquisition Inquiry; (ii) subject to Section 4.3(b), furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry Acquisition Inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition ProposalProposal or Acquisition Inquiry; or (iii) subject to Section 5.2(c), (iv) approve, endorse endorse, agree to or recommend any Acquisition Proposal or (v) execute or enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting .
(b) Notwithstanding anything contained in Section 4.3(a) (but subject to the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach other provisions of this Section 6.3(a) by the Company. Notwithstanding the foregoingAgreement), from the date hereof and prior to the adoption and approval of this Agreement by the Required Company Shareholder Stockholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing may furnish nonpublic information regarding the Acquired Companies Corporations to, or entering enter into or conducting discussions or engage in negotiations with, any Person in response to that has submitted (and not withdrawn) a bona fide written Acquisition Proposal that is submitted to the board of directors of the Company by such Person during such period (has reasonably determined in good faith, after consultation with the Company’s outside legal counsel and not withdrawn) which is reasonably likely to result in financial advisor, constitutes a Superior Proposal if Offer or could reasonably be expected to lead to a Superior Offer if: (A) neither the Company nor any Representative of any of the Acquired Companies Corporations shall have materially breached or violated any of the provisions set forth in this Section 6.3(a) in any respect that results in such Acquisition Proposal, 4.3; (B) the board of directors of the Company Board or its Special Committee concludes determines in good faith, after consultation with having considered the Company’s or the Special Committee’s advice of its outside legal counsel, that failure to take such action would be inconsistent with is required in order for the fiduciary obligations board of directors of the Company Board to comply with its fiduciary duties to the Company’s shareholders stockholders under applicable Legal Requirements, ; (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to or concurrent with furnishing any such nonpublic information to to, or entering into discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure gives Parent written notice of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the such Person making such Acquisition Proposal and (iv) of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person. The ; (D) the Company shall keep Parent reasonably informed on a prompt basis receives from such Person an executed confidentiality agreement containing nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions at least as favorable to any material developments regarding the Company as those contained in the Confidentiality Agreement; and (E) concurrent with furnishing any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent).
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, If the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit any Representative of the Company to enter into any agreement (an “Acquisition Agreement”) contemplating receives an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, Acquisition Inquiry at any time prior to during the earlier Pre-Closing Period, then the Company shall promptly (and in no event later than 24 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent of such Acquisition Proposal or Acquisition Inquiry, including the identity of the Required Company Stockholder Vote Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the termination terms thereof. The Company shall promptly (and in no event later than 24 hours) provide notice to Parent of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described any material change in the preceding clauses (i) – (iv) in response to a Superior status and terms of any such Acquisition Proposal if the Company Board and any modification or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresproposed modification thereto.
(d) Until the earlier of the Merger Effective Time The Company shall, and the termination of this Agreement pursuant to Article XIshall cause its Subsidiaries and its and their respective Representatives to, the Company shall cease immediately (i) cease and cause to be terminated any and all existing solicitationactivities, discussiondiscussions or negotiations, negotiation or other action if any, with any third party conducted by any of prior to the Acquired Companies or any of their respective Representatives date hereof with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)or Acquisition Inquiry.
(e) The Company agrees shall not to release or permit the release of any Person from, or to waive or permit the waiver of any provision ofof or right under, any confidentiality, “standstill” or similar agreement with respect to which any Company Common Stock unless the board of directors of the Company determines in good faith, after having considered the advice of its outside legal counsel, that failure to release would be reasonably likely to result in a breach of its fiduciary duties. The Company either has or shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment in the Company in the last twelve (12) months prior to the date of this Agreement to return to the Company all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Companies Corporations or destroy such confidential information in each case to the extent such third-party is a party, and will use its reasonable best efforts required to enforce or cause to be enforced each do so under the terms of such agreement at the request of Parentconfidentiality agreement.
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Zilog Inc)
No Solicitation. (a) During the Pre-Closing Period, Neither the Company shall not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives nor any of the other Acquired Companies not to, Corporations nor any of its or their respective Representatives shall directly or indirectly, (i) solicit, initiate, encourage, or knowingly encourage or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any inquiries or the making of any proposal or offer related to an Acquisition Proposal Transaction or take any action that could reasonably be expected to lead to an Acquisition Proposalany such inquiries or the making of any such proposal or offer, (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Corporations to any Person in connection with or in response to an Acquisition Proposal Transaction or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition ProposalTransaction, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition ProposalTransaction, (iv) approve, endorse or recommend any Acquisition Proposal Transaction, (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, or (vvi) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating having a primary purpose of effectuating, or otherwise relating to which would effect, any Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, this Section 4.2(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, or negotiations with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Acquired Corporations nor any of their Representatives have taken any actions inconsistent with any of the provisions set forth in this Section 4.2, (2) the board of directors of the Company concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person, a reasonably detailed description of such Superior Offer and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, or negotiations with such Person, (4) the Company receives from such Person an executed confidentiality agreement containing confidentiality provisions no less favorable in the aggregate to the Company than those contained in the Mutual Nondisclosure Agreement dated August 6, 2003 between Parent and the Company (the “Nondisclosure Agreement”) (provided that such confidentiality agreement will not prevent the Company from disclosing the terms of the Superior Offer to Parent and its Representatives or from otherwise complying with this Section 4.2(a)), and (5) contemporaneously with furnishing any additional nonpublic information to such Person, the Company furnishes such additional nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) provided, that this Section 4.2(a) shall not prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or 14e-2 promulgated under the Exchange Act or (ii) from making any disclosure to its stockholders if, in the good faith judgment of the Company board of directors, after receipt of advice from outside counsel, failure so to disclose would violate its fiduciary duties to the Company’s stockholders under applicable Legal Requirements; it being expressly understood that nothing in this sentence shall be construed to limit or expand Parent’s rights and the Company’s obligations under each of Section 5.2 and Section 8.1(e). Without limiting the generality of the foregoing, it is agreed the Company acknowledges and agrees that any violation of any of the restrictions set forth in this Section 6.3(a) the preceding sentence by any Representative of any of the Acquired CompaniesCorporations, whether or not such Person Representative is purporting to act on behalf of any of the Acquired Companies or otherwiseCorporations, shall be deemed to be constitute a breach of this Section 6.3(a) 4.2 by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption .
(b) The Company shall promptly advise Parent in writing of this Agreement any inquiry or proposal or offer received by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject or any of its Representatives related to Section 6.3(b), prohibit the Company from furnishing an Acquisition Transaction or any request for nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response relating to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, Corporations (B) including the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations identity of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board Person making or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that submitting such Acquisition Proposal or request, and the terms thereof) that is reasonably likely made or submitted by any Person during the Pre-Closing Period in connection with an Acquisition Proposal. The Company shall promptly notify Parent in writing of any material modification to lead any such inquiry, proposal or offer or request related to an Acquisition Transaction.
(c) The Company shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Transaction. The Company shall not, without the prior written consent of Parent, amend the Rights Agreement or take any other action with respect to, or make any determination under, the Rights Agreement, including a Superior Proposal and redemption of the rights issuable under the Rights Agreement or any action to facilitate an Acquisition Transaction.
(Dd) The Company will promptly request each Person that has executed, within 12 months prior to furnishing any such nonpublic the date of this Agreement, a confidentiality, standstill or similar agreement in connection with its consideration of a possible Acquisition Transaction to return all confidential information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information heretofore furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentCompany.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Jni Corp), Merger Agreement (Applied Micro Circuits Corp)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement through the Effective Time, the Company CBNK shall not, directly nor shall it authorize or indirectlypermit any of its directors, and shall cause the officers or employees or any investment banker, financial advisor, attorney, accountant or other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not representative retained by it to, directly or indirectlyindirectly through another Person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information or assistance), encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action designed to facilitate or that could is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably be expected likely to lead to an to, any Acquisition Proposal, (ii) furnish enter into any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection agreement with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead respect to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (vother than WFD) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle information or similar document data with respect to CBNK or any Contract contemplating of the CBNK Subsidiaries or otherwise relating to an Acquisition Proposal, or (iv) make or authorize any statement or recommendation in support of any Acquisition TransactionProposal. Without limiting Notwithstanding the foregoingforegoing sentence, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of CBNK may take any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any actions described in clause (iii) of the Acquired Companies or otherwiseforegoing sentence only if, shall be deemed (A) CBNK has received a bona fide unsolicited written Acquisition Proposal prior to be the CBNK Meeting that did not result from a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal5.11, (B) the Company CBNK Board or its Special Committee concludes of Directors determines in good faith, after consultation with and having considered the Company’s or the Special Committee’s advice of its outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent its financial advisor of nationally recognized reputationadvisor, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal Proposal, (C) CBNK has provided WFD with at least one (1) Business Day’s prior notice of such determination (the “Notice of Superior Proposal”), and (D) prior to furnishing or affording access to any such nonpublic information or data with respect to such PersonCBNK or otherwise relating to an Acquisition Proposal, the Company CBNK receives from such Person an executed a confidentiality agreement containing customary limitations on with terms no less favorable to CBNK than those contained in the use Confidentiality Agreement between WFD and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisionsCBNK. As CBNK shall promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent WFD any nonpublic non-public information concerning any of the Acquired Companies that is furnished regarding CBNK provided to any third other Person or its Representatives which that was not previously provided to ParentWFD, such additional information to be provided no later than the date of provision of such information to such other party.
(b) From Notwithstanding Section 5.04, prior to the date of the CBNK Meeting, the CBNK Board may approve or recommend to the stockholders of CBNK a Superior Proposal and withdraw, change, qualify or modify the CBNK Recommendation in connection therewith (a “Change in Recommendation”) after the execution third (3rd) Business Day following WFD’s receipt of this Agreement, except to the extent Notice of Superior Proposal advising WFD that doing so would the CBNK Board has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result in from a breach of this Section 5.11) constitutes a Superior Proposal (it being understood that CBNK shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its affiliates that CBNK proposes to accept and the subsequent notice period (which shall not shorten such original three (3) Business Day period) shall be two (2) Business Days) if, but only if, (a) the CBNK Board has reasonably determined in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be reasonably likely to violate its fiduciary duties, each of the Company Parties shall promptlyduties to CBNK’s stockholders under applicable law, and in (b) at the end of such three (3) Business Day period or two (2) Business Day period (as the case may be), after taking into account any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposalsuch adjusted, any indication by any Person considering making an Acquisition Proposal, any request for information relating modified or amended terms as may have been committed to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing by WFD since its receipt of such Notice of Superior Proposal (i) provided, however, that WFD shall not have any obligation to propose any adjustments, modifications or amendments to the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposalthis Agreement), indicationthe CBNK Board has again in good faith made the determination (i) in clause (a) of this Section 5.11, inquiry or request, together with a copy thereof and (if availableii) or if not in writing, a written description thereof, (iii) the identity of the Person making that such Acquisition Proposal and (iv) constitutes a Superior Proposal. Notwithstanding the Company’s intention to furnish information toforegoing, the withdrawal, changing, qualifying or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None modifying of the Acquired Companies shall, after CBNK Recommendation or the date hereof, enter into making of a Change in Recommendation by the CBNK Board shall not change the approval of the CBNK Board for purposes of causing any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any applicable “moratorium,” “control share,” “fair price,” “affiliate transactiontakeover,” “business combination” or other anti-takeover Legal Requirements or any “excess shareinterested stockholder” or similar ownership limitation provisions (law to be inapplicable to this Agreement and the CBNK Voting Agreements and the transactions contemplated hereby and thereby, including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresMerger.
(dc) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company CBNK shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions or negotiations with any Persons (other action than WFD) conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any of the foregoing, and shall use reasonable best efforts to cause all Persons other than WFD who have been furnished confidential information regarding CBNK in connection with the solicitation of or discussions regarding an Acquisition Proposal effective as of within the twelve (12) months prior to the date hereof, (ii) request that all confidential information previously furnished hereof promptly to any third party be returned promptly and (iii) deny access to any data room containing any return or destroy such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company information. CBNK agrees not to release or permit any third party from the release confidentiality and standstill provisions of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies CBNK is or may become a party, and will use its reasonable best efforts shall immediately take all steps necessary to enforce terminate any approval that may have been heretofore given under any such provisions authorizing any Person (other than WFD) to make an Acquisition Proposal. CBNK shall ensure that the directors, officers, employees, agents and representatives (including any investment bankers, financial advisors, attorneys, accountants or cause other retained representatives) of CBNK are aware of the restrictions described in this Section 5.11 as reasonably necessary to avoid violations thereof. It is understood that any violation of the restrictions set forth in this Section 5.11 by any director, officer, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of CBNK, at the direction or with the consent of CBNK, shall be deemed to be enforced each such agreement at the request a breach of Parentthis Section 5.11 by CBNK.
Appears in 2 contracts
Sources: Merger Agreement (Westfield Financial Inc), Merger Agreement (Chicopee Bancorp, Inc.)
No Solicitation. (a) During the Pre-Closing Period, the The Company shall not, and shall cause its Subsidiaries not to, and will use its reasonable best efforts to see that its officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives (collectively, "Representatives") do not, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, : (i) solicit, initiate, or knowingly encourage, induce or take any action to facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal (as defined in Section 7.1(d)) or take any action that could reasonably be expected to lead to an Acquisition Proposal, inquiry with respect thereto; (ii) furnish enter into any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, agreement with respect to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, ; or (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, or afford access to or provide any nonpublic information or data relating to the Company or its Subsidiaries to any Person relating to any Acquisition Proposal, or otherwise cooperate with, or assist or participate in, facilitate or knowingly encourage an effort or attempt by any Person to do or seek any of the foregoing; provided, however, that in the event an unsolicited written Acquisition Proposal for the Company or any of its Subsidiaries is received by the Company not in violation of this Section 7.1(a), the Company may (X) furnish confidential information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and the Person's Affiliates and representatives pursuant to a customary confidentiality agreement and (Y) participate in discussions and engage in negotiations with the Person and the Person's Affiliates and representatives regarding such Acquisition Proposal, in response to a bona fide an unsolicited written Acquisition Proposal if, but only if, the Board of Directors of the Company, or the Special Committee, concludes in good faith and on the basis of (1) advice from financial advisors that is submitted such Acquisition Proposal involves consideration to the Company by such Person during such period (and not withdrawn) holders of the Company's Common Stock which is reasonably likely to result in a Superior Proposal if (Aas defined in Section 7.1(d) neither to the Merger set forth in this Agreement and (2) consultation with independent outside counsel that the failure to discuss, negotiate and consider such Acquisition Proposal could constitute a violation of the fiduciary duties of the Company's Board of Directors, or its Special Committee, under applicable Law; and provided, further, that the Company nor shall notify Parent promptly in writing of any Representative inquiries, expressions of interest, proposals or offers received by the Company or any of the Acquired Companies shall have breached Company's representatives relating to any Acquisition Proposal or violated this Section 6.3(a) possibility or consideration of making an Acquisition Proposal indicating, in connection with such notice, the terms and conditions of any respect that results in such Acquisition Proposal and, if the Acquisition Proposal is formally made, the name of the Person making the Acquisition Proposal. The Company hereby agrees to furnish promptly to Parent copies of any confidential information provided to the Person making any such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take itemize such action would be inconsistent with the fiduciary obligations of the Company Board confidential information to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board extent same has previously been given or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely made available to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such PersonParent. In addition, the Company receives from such hereby agrees that it will take the necessary steps promptly to inform each Person making an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf Acquisition Proposal of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to obligations undertaken in this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent7.1.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of Nothing contained herein shall prohibit the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the receiptExchange Act or (ii) from making any disclosure to its stockholders if, directly or indirectly, in the good faith judgment of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Board of Directors of the Company, (ii) the material terms and conditions of such Acquisition Proposalor its Special Committee, indicationafter consultation with independent outside counsel, inquiry or request, together with failure to so disclose could constitute a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity violation of the Person making such Acquisition Proposal and (iv) fiduciary duties of the Company’s intention to furnish information toBoard of Directors, or enter into discussions or negotiations withits Special Committee, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parentunder applicable Law.
(c) The Neither the Board of Directors of the Company Board and the nor its Special Committee may not thereof shall, except as expressly permitted by Section 7.1(a) and this Section 7.1(c), (i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to the Buyer Parties, Parent or fail to makeAcquisition Sub, the Company approval or recommendation by such Board Recommendationof Directors or its Special Committee of the Merger or this Agreement, (ii) approve, authorize approve or recommend, or propose publicly or approve, authorize to approve or recommend, an any Acquisition Proposal, or (iii) authorize or permit cause the Company to enter into any letter of intent, agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal in principle, acquisition agreement or (iv) permit the Acquired Companies to take any action to exempt or make not subject other similar agreement related to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including Acquisition Proposal. Notwithstanding the Ownership Limitation) applicable foregoing, in the event that prior to the adoption of this Agreement by the holders of the Company's Common Stock, the Board of Directors of the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes Committee, determines in good faith, after it has received a Superior Proposal (as defined below) and after consultation with independent outside counsel that the failure to do so could constitute a violation of fiduciary duties of the Company’s ('s Board of Directors, or the its Special Committee’s, as applicable) outside legal counselunder applicable Law, that failure to take such action would be inconsistent with the fiduciary obligations Board of Directors of the Company, or its Special Committee, may (subject to this and the following sentences) inform Company Board to stockholders that it no longer believes that the Company’s shareholders under applicable Legal RequirementsMerger or this Agreement is advisable and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day following Parent's receipt of written notice advising Parent that the Board of Directors of the Company, or its Special Committee, has received a Superior Proposal Termination Proceduresspecifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal, and stating that it intends to make a Subsequent Determination. After providing such notice, the Company shall provide a reasonable opportunity to Parent to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation to stockholders without making a Subsequent Determination; provided however, that any such adjustments shall be at the discretion of the parties at such time. Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its stockholders whether or not the Board of Directors of the Company, or its Special Committee, makes a Subsequent Determination, unless Parent has terminated this Agreement pursuant to an applicable provision of Section 9.1.
(d) Until The Company agrees that it will take the earlier necessary steps promptly to inform its Representatives of the Merger Effective Time obligations undertaken in this Section 7.
1. The Company shall, and the termination of this Agreement pursuant to Article XIshall cause its Subsidiaries to, the Company shall immediately (i) cease and cause to be terminated terminated, and use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives Persons with respect to any Acquisition Proposal effective as and shall request the return or destruction of the date hereof, (ii) request that all confidential information previously furnished provided to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.Person. For
Appears in 2 contracts
Sources: Merger Agreement (Richton International Corp), Merger Agreement (FRS Capital Co LLC)
No Solicitation. (a) During the Pre-Closing Period, the Company :
(a) Parent shall not, not directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives not authorize or permit any Parent Subsidiary or any Representative of the other Acquired Companies not to, Parent directly or indirectlyindirectly to, (i) solicit, initiate, encourage, encourage or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, Parent Subsidiary to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate engage in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contemplating or otherwise relating to any Parent Acquisition Transaction. Without limiting the foregoing; provided, it is agreed however, that any violation of the restrictions set forth in this Section 6.3(a5.4(a) by any Representative of any of the Acquired Companies, whether or shall not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company Parent from furnishing nonpublic information regarding the Acquired Companies Parent or any Parent Subsidiary to, or entering into or conducting discussions or negotiations with, any Person in response to an unsolicited bona fide written proposed Acquisition Proposal submitted by such Person if (1) the Board of Directors of Parent concludes in good faith, based upon the written advice of its financial advisor, that such Acquisition Proposal could reasonably be expected to result in a transaction that is more favorable to Parent's shareholders than the Merger (any such more favorable unsolicited bona fide written Acquisition Proposal that is submitted being referred to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in this Agreement as a "Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal"), (B2) the Company Board or its Special Committee of Directors of Parent concludes in good faith, after consultation with based upon the Company’s or the Special Committee’s written advice of its outside legal counsel, that failure to take such action would be inconsistent is required in order for the Board of Directors of Parent to comply with the its fiduciary obligations of the Company Board to the Company’s Parent's shareholders under applicable Legal Requirementslaw, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D3) prior to furnishing any such nonpublic information to to, or entering into discussions with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent's intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Parent, and (4) prior to furnishing any such information to such Person, Parent furnishes such information to the Company (to the extent such information has not been previously furnished by Parent to the Company). Without limiting the generality of the foregoing, Parent acknowledges and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing agrees that any violation of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that restrictions set forth in the preceding sentence by any Representative of Parent, whether or not such Representative is furnished purporting to any third Person or its Representatives which was not previously provided act on behalf of Parent, shall be deemed to constitute a breach of this Section 5.4 by Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of Parent shall promptly advise the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making or submitting such Acquisition Proposal and (ivthe term thereof) that is made or submitted by any Person during the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to ParentPre-Closing Period.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company Parent shall immediately (i) cease and cause to be terminated any discussions existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request of this Agreement with any Person that all confidential information previously furnished relate to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Acquisition Proposal.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Andataco), Merger Agreement (Ipl Systems Inc)
No Solicitation. (a) During Unless this Agreement is terminated in accordance with the Pre-Closing Periodterms hereof, the Company Holopak, Foilmark and their respective Subsidiaries shall not, directly nor shall any of Holopak, Foilmark or indirectlyany of their respective Subsidiaries, and shall cause the other Acquired Companiesdirect any of their respective officers, its Representatives and the Representatives directors, employees, representatives, agents or Affiliates (including, without limitation, any investment banker, attorney or accountant retained by Holopak or Foilmark or any of the other Acquired Companies not their respective Subsidiaries), to, directly or indirectly, (i) solicit, initiate, encourage, induce solicit or facilitate any inquiries regardingencourage (including by way of furnishing non-public information), or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding any of the Acquired Companiesenter into, or provide any access to the books, records maintain or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations negotiate with any Person in respect furtherance of, an Acquisition Transaction (as defined below); provided, however, that nothing herein shall prohibit the Board of Directors of Holopak or otherwise cooperate with respect toFoilmark, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting as the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoingcase may be, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide (other than an Affiliate of Holopak or Foilmark, as the case may be) that makes an unsolicited written proposal for an Acquisition Proposal that is submitted to Transaction after the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal date hereof, if (A) neither the Company nor any Representative Board of any Directors of Holopak or Foilmark, as the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faithcase may be, after consultation with and based upon the Company’s or the Special Committee’s advice of outside legal counsel, determines in good faith that the failure to take engage in such negotiations or discussions, or to disclose such non-public information, would be a breach of the Board of Directors of Holopak's or Foilmark's, as the case may be, fiduciary duties under applicable Law, and prior to taking such action, Holopak or Foilmark, as the case may be, provides written notice to the other within twenty-four (24) hours of receipt of any such proposal to the effect that it is taking such action would be inconsistent with (which notice shall identify the fiduciary obligations nature and material terms of the Company Board proposal). Holopak or Foilmark, as the case may be, shall promptly deliver to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor other a copy of nationally recognized reputation, that such any Acquisition Proposal is reasonably likely to lead to a Superior Transaction Proposal and (D) prior promptly notify the other of any indication that any Person is considering making an Acquisition Transaction Proposal or of any request for non-public information relating to furnishing Holopak or Foilmark, as the case may be, or their respective subsidiaries, or for access to the properties, books or records of Holopak or Foilmark, as the case may be, or their respective Subsidiaries, by any such nonpublic information to such PersonPerson that may be considering making, or has made, an Acquisition Transaction Proposal and shall keep the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use other fully and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf timely informed of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any status of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parentsame.
(b) From and after the execution For purposes of this Agreement, except to the extent that doing so would result in "Acquisition Transaction" shall mean a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to transaction involving any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person following (other than the Buyer Parties and their respective Affiliatestransactions contemplated by the Agreement with Foilmark or Holopak) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses involving Foilmark (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to its Subsidiaries) or Holopak (or any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representativesits Subsidiaries), in each case, subject to as the Company’s rights and obligations in Section 6.3(a).
case may be: (ev) The Company agrees not to release any direct or permit the release indirect acquisition or purchase of more than 20% of any Person fromclass of equity securities of Foilmark or Holopak, or to waive or permit as the waiver of case may be; (w) any provision ofmerger, any confidentialityconsolidation, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.share exchange,
Appears in 2 contracts
Sources: Merger Agreement (Holopak Technologies Inc), Merger Agreement (Simon Robert J)
No Solicitation. (ai) During the Pre-Closing PeriodThe Seller and its subsidiaries and their respective officers, the Company directors, employees, representatives, agents or affiliates shall cease any discussion or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). The Seller shall not, directly or indirectlynor shall it permit any of its Subsidiaries to, and it shall use its best efforts to cause the other Acquired Companiesits officers, its Representatives and the Representatives of the other Acquired Companies directors, employees, agents or affiliates not to, directly or indirectly, (iA) solicit, initiateinitiate or knowingly encourage (including by way of furnishing information), encourageor knowingly take any other action to facilitate, induce or facilitate any inquiries regardingor the making of any proposal which constitutes, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could may reasonably be expected to lead to an to, any Acquisition Proposal, Proposal (ii) furnish any nonpublic information regarding any of the Acquired Companiesas defined in this Section 5(h)), or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iiiB) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, regarding any Acquisition Proposal; provided, (iv) approvehowever, endorse or recommend any Acquisition Proposal or (v) enter into any letter that if the board of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation directors of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes Seller determines in good faith, after consultation with with, and in part based on the Company’s or the Special Committee’s advice of outside legal counsel, that failure it is required to take such action would be inconsistent do so in order to comply with the its fiduciary obligations of the Company Board duties to the CompanySeller’s shareholders stockholders under applicable Legal Requirementslaw, the Seller may, in response to an unsolicited Acquisition Proposal, and subject to compliance with Section 5(h)(iii), (CX) furnish information with respect to the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that Seller to any Person making such unsolicited Acquisition Proposal is reasonably likely pursuant to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use with such Person, and disclosure (Y) participate in discussions or negotiations regarding such Acquisition Proposal. For purposes of all nonpublic written and oral information furnished this Agreement, “Acquisition Proposal” means any bona fide proposal or offer from any Person relating to such Person by any merger, consolidation, business combination, sale or on behalf a significant amount of assets outside of the Company and customary “standstill” provisions. As promptly as reasonably practicable following Ordinary Course of Business, sale of shares of capital stock outside of the furnishing Ordinary Course of nonpublic information pursuant to this Section 6.3(a)Business, tender or exchange offer or similar transaction involving the Division, the Company Division Subsidiaries or the Acquired Assets; provided however, for the avoidance of doubt, that “Acquisition Proposal” shall provide to Parent not include any nonpublic information concerning joint venture agreement entered into by any of Seller, its Napster Division, or those of its Subsidiaries that are included in its Napster Division or any merger, consolidation, business combination, sale of a significant amount of assets, sale of shares of capital stock, tender or exchange offer of similar transaction involving Seller or any of those Subsidiaries that are included in Seller’s Napster Division or any Excluded Asset (i) which does not involve any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From Assets and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions consummation of such Acquisition Proposal, indication, inquiry which will in no way prevent or request, together with a copy thereof (if available) or if not impair in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry respect the Transaction or request. None impair the ability of Buyer to operate the Acquired Companies shall, after Division in a manner consistent with its operation by Seller prior to the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to ParentClosing Date.
(cii) The Company Board and Except as set forth in this Section 5(h), neither the Special Committee may not board of directors of the Seller nor any committee thereof shall (iA) withdrawwithdraw or modify, qualify or propose to withdraw or modify, in a manner adverse to the Buyer Parties, or fail to makeBuyer, the Company Board Recommendationapproval or recommendation by such board of directors or such committee of the Transaction or this Agreement, (iiB) approve, authorize approve or recommend, or propose publicly or approve, authorize to approve or recommend, an any Acquisition Proposal, or (iiiC) authorize or permit cause the Company Seller to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject with respect to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefromAcquisition Proposal. Notwithstanding anything to the contrary hereinforegoing, at any time prior to in the earlier event that the board of directors of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes Seller determines in good faith, after consultation with and based in part on the Company’s (or the Special Committee’s, as applicable) advice of outside legal counsel, that failure it is required to take such action would be inconsistent do so in order to comply with its fiduciary duties to the fiduciary obligations Seller’s stockholders under applicable law, the board of directors of the Company Board Seller may (subject to the Companyfollowing sentences) (X) withdraw or modify its approval or recommendation of the Transaction and this Agreement (or decide not to recommend it before the Definitive Proxy Materials are sent to the Seller’s shareholders under applicable Legal Requirementsstockholders) only at a time that is after the fifth business day following Buyer’s receipt of written notice advising Buyer that the board of directors of the Seller has received a Superior Proposal, but only after following specifying the material terms and conditions of such Superior Proposal Termination Procedures.
and identifying the Person making such Superior Proposal or (dY) Until terminate this Agreement by exercising its termination right under Section 9(a)(vii). In addition, if the earlier of the Merger Effective Time and the termination of Seller proposes to terminate this Agreement pursuant to Article XISection 9(a)(vii), it shall pay to Buyer the Termination Fee (as defined in Section 10(k)) at the time prescribed in Section 10(k). For purpose of this Agreement, a “Superior Proposal” shall mean an Acquisition Proposal made by a third party after the Signing Date which, in the good faith judgment of the board of directors of the Seller, taking into account, to the extent deemed appropriate by the board of directors, the Company shall immediately various legal, financial and regulatory aspects of the proposal and the Person making such proposal, (ix) cease and cause if accepted, is reasonably likely to be terminated any existing solicitationconsummated, discussionand (y) if consummated, negotiation or is reasonably likely to result in a more favorable transaction than the Transaction contemplated hereunder considering, among other action conducted things, and to the extent deemed appropriate in good faith by any the Board of Directors, the long-term prospects and interests of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly Seller and (iii) deny access to any data room containing any such information to any third party (its stockholders and other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)relevant constituencies.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Roxio Inc), Asset Purchase Agreement (Sonic Solutions/Ca/)
No Solicitation. (a) During From and after the Pre-Closing Perioddate hereof until the Effective Time or the termination of this Agreement pursuant to Article 7, the Company shall not, directly or indirectly, and shall cause the other Acquired Companiesnot authorize or permit its Company Subsidiaries and their respective officers, its Representatives directors, employees, financial advisors, counsel, representatives and the Representatives of the other Acquired Companies not agents (collectively, "Representatives") to, directly or indirectly, (i) solicit, initiate, encourage, induce encourage or otherwise facilitate any inquiries inquiry, offer, proposal or announcement that constitutes, or could be reasonably expected to lead to, an Acquisition Proposal; (ii) enter into any agreement or letter of intent regarding, approve, endorse or the makingrecommend, submission, reaffirmation or announcement of any an Acquisition Proposal (except for any confidentiality agreement, to the extent provided below); or take (iii) participate or engage in or encourage in any action that could way negotiations or discussions concerning, or provide any non-public information to, any Person relating to, an Acquisition Proposal, or which may reasonably be expected to lead to an Acquisition Proposal.
(b) Upon execution of this Agreement, (ii) furnish any nonpublic information regarding any of the Acquired CompaniesCompany and its Representatives shall, or provide any access to the booksand shall cause all Company Subsidiaries and their respective Representatives to, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any immediately terminate all discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, (other than the Parent) concerning any Acquisition Proposal, (iv) approve, endorse or recommend and shall request that such Persons promptly return any confidential information furnished by the Company in connection with any Acquisition Proposal Proposal. Other than as contemplated in this Agreement, the Company shall not waive any provision of its Rights Plan or (v) enter into of any letter of intentconfidentiality, arrangement, understanding, agreement, agreement in principle standstill or similar document or agreement entered into with any Contract contemplating or otherwise relating to Person regarding any Acquisition Transaction. Without limiting Proposal, and prior to the foregoingClosing shall enforce all such agreements in accordance with their terms.
(c) Notwithstanding the provisions of Section 5.2(a) and subject to compliance with Section 5.2(b), it this Agreement shall not prohibit the Company's Board of Directors from, prior to obtaining the Company Stockholder Approval, furnishing nonpublic information to or entering into discussions or negotiations with, any Person that makes an unsolicited, bona fide written Acquisition Proposal that the Company's Board of Directors reasonably determines is agreed that likely to result in a Superior Proposal, if, and only to the extent that:
(i) neither the Company nor its Representatives violated any violation of the restrictions set forth in this Section 6.3(a5.2;
(ii) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption 's Board of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faithDirectors, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent a financial advisor of nationally recognized reputation, determines in good faith, by resolution duly adopted, that such Acquisition Proposal action is reasonably likely required in order for the Company's Board of Directors to lead to a Superior Proposal and comply with its fiduciary duties under applicable Law;
(Diii) prior to first furnishing any such nonpublic information to such Personto, the Company receives from or first entering into discussions and negotiations with, such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise the Company (A) provides written notice of at least three (3) business days to the Parent orally and in writing of (i) to the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention effect that it intends to furnish information to, or enter into discussions or negotiations with, such Person. , and naming and identifying the Person making the Acquisition Proposal, and (B) receives from such Person an executed confidentiality agreement with terms no less favorable to the Company than the Confidentiality Agreement; and
(iv) the Company concurrently provides the Parent with all non-public information to be provided to such Person that the Parent has not previously received from the Company, the Company keeps the Parent reasonably informed of the status and the material terms and conditions and all other material developments with respect to any such discussions or negotiations, and the Company provides the Parent with copies of all material documents regarding such discussions and negotiations.
(d) The Company shall keep Parent notify the Parent, telephonically and in writing, as promptly as practicable (and in any event, within 24 hours) if it or any of its Representatives receives an Acquisition Proposal or any inquiry reasonably informed on a prompt basis as likely to lead to an Acquisition Proposal or if any material developments regarding any such discussions or negotiations are sought to be initiated or continued with the Company or its Representatives concerning an Acquisition Proposal, indicationand such notification shall contain, inquiry or request. None in writing, the name of the Acquired Companies shall, after Person involved and the date hereof, enter into any confidentiality agreement that would prohibit them from providing material terms and conditions of such information to Parentan Acquisition Proposal.
(ce) The Subject to Section 5.2(f), unless and until this Agreement has been terminated in accordance with Article 7, the Company Board and the Special Committee may shall not (i) withdrawwithdraw or modify, qualify or propose publicly to withdraw or modify, in a manner adverse to the Buyer Parties, Parent or fail to makeMerger Sub, the Company Board Recommendation, (ii) approve, authorize approval or recommendation of the Merger as set forth in Section 5.3(a); or approve or recommend, or propose publicly or approve, authorize to approve or recommend, an any Acquisition Proposal.
(f) Notwithstanding the foregoing, in the event that, prior to obtaining the Company Stockholder Approval, the Company's Board of Directors receives a Superior Proposal that has not been withdrawn, the Company's Board of Directors may, if it determines in good faith, by resolution duly adopted after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, that such action is required in order for the Company's Board of Directors to comply with its fiduciary duties under applicable Law, withdraw or modify the approval or recommendation of the Merger, approve or recommend such Superior Proposal and terminate this Agreement as permitted pursuant to the terms of this Section 7.1(f) (iii) authorize and, concurrently with or permit immediately after such termination, cause the Company to enter into a definitive agreement with respect to such Superior Proposal); provided that:
(i) the Company notifies the Parent in writing that it intends to take such action, which notice must identify the party making such proposal, set forth the material terms and conditions of such proposal, and have attached to it the most current version of any agreement such written agreement;
(an “Acquisition Agreement”ii) contemplating an Acquisition Proposal Parent shall not have proposed, within three (3) business days after receipt of such notice from the Company, to amend this Agreement to provide for terms as favorable as or superior to those of the Superior Proposal;
(iii) provided the Parent has submitted a proposal to amend this Agreement as contemplated by subparagraph (ii) above, (A) for a period of three (3) business days after receipt of such proposal, the Company shall have reasonably considered and discussed in good faith all proposals submitted by the Parent and, without limiting the foregoing, met with, and caused its financial advisors and legal advisors to meet with, the Parent and its advisors from time to time as reasonably requested by the Parent to reasonably consider and discuss in good faith the Parent's proposals; and (B) the Company's Board of Directors in good faith determines, after consultation with its financial and legal advisors, that after taking into account any amendments to this Agreement proposed by the Parent as of the end of such three (3) business day negotiation, the Parent's proposal is not at least as favorable to the stockholders of the Company as the Superior Proposal; and
(iv) permit the Acquired Companies to take Company did not violate the restrictions of this Section 5.2. Without limiting any action to exempt other rights of the Parent and Merger Sub under this Agreement in respect of any such action, any withdrawal or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” modification by the Company of the approval or other anti-takeover Legal Requirements recommendations of the Merger or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant shall not have any effect on the approvals of, and other actions referred to Article XIherein for the purpose of causing Section 203 of Delaware Law and any other takeover statute to be inapplicable to, this Agreement and the transactions contemplated hereby, which approvals and actions are irrevocable.
(g) Nothing contained in this Section 5.2 shall prohibit the Company Board or its Special Committee may take one or more Board of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board Directors from taking and disclosing to the Company’s shareholders '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 taking any action or making any disclosure required by applicable Legal Requirements, but only after following Law; provided that the Superior Proposal Termination Procedurescontent of the disclosure complies with this Section 5.2.
(dh) Until the earlier Any violation of the Merger Effective Time and the termination restrictions in this Section 5.2 by a Representative shall be deemed a breach of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted Section 5.2 by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Corillian Corp), Merger Agreement (Intelidata Technologies Corp)
No Solicitation. (a) During Except as permitted by this Section 6.6, during the Pre-Closing Period, the Company shall not, directly or indirectly, and the Company shall cause the other Acquired Companies, its Representatives Company Subsidiaries and the Representatives of the other Acquired Companies Company and the Company Subsidiaries not to, directly or indirectly, (i) solicit, initiate, encourageor knowingly encourage the submission of, induce any Takeover Proposal or any inquiry, proposal, offer or indication of interest that would reasonably be expected to lead to a Takeover Proposal (a “Takeover Inquiry”), (ii) approve or recommend any Takeover Proposal, enter into any agreement, agreement-in-principle or letter of intent with respect to or accept any Takeover Proposal or Takeover Inquiry (or resolve to or publicly propose to do any of the foregoing), (iii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any information in connection with, or knowingly take any action to facilitate any inquiries regardingor the making of any proposal that constitutes, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to, any Takeover Proposal or Takeover Inquiry, or (iv) terminate, amend, waive or fail to an Acquisition Proposal, (ii) furnish enforce any nonpublic information regarding rights under any confidentiality or non-use agreement or provision relating to a Takeover Proposal or “standstill” or other similar agreement to which the Company or any of the Acquired CompaniesCompany Subsidiaries is a party; provided, however, that prior to the Offer Acceptance Time, in response to an unsolicited written Takeover Proposal from a third party that has not been withdrawn and that the Company Board determines in good faith (after receiving the advice of its financial advisor and outside counsel) is, or provide any could reasonably be expected to result in or lead to, a Superior Proposal, the Company and its Representatives may (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Takeover Proposal and its Representatives and afford access to the business, properties, assets, books, records or personnel of the Company and any of the Acquired CompaniesCompany Subsidiary, to any Person in connection with or in response each case, pursuant to an Acquisition Proposal Acceptable Confidentiality Agreement and (y) participate or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person such person making such Takeover Proposal and its Representatives (including to solicit a revised Takeover Proposal), in respect of, the case of each of clauses “(x)” and “(y),” if and only if: (1) there shall have been no material breach or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth terms of this Section 6.6(a) in connection with such person making such Takeover Proposal; (2) prior to taking any action contemplated in clauses “(x)” or “(y)” with respect to such Person, the Company Board shall have determined in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law and (3) contemporaneously with furnishing or making available any information to such person, the Company furnishes or makes available such information to Parent (to the extent not previously furnished or Made Available to Parent).
(b) Nothing contained in this Section 6.3(a6.6 or elsewhere in this Agreement shall prohibit the Company or the Company Board from (i) taking and disclosing to the holders of Company Common Stock a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, (ii) from making any Representative disclosure to the holders of any Company Common Stock if the Company Board has determined in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Acquired CompaniesCompany under applicable Law, whether or (iii) making any “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act; provided, however, that: (A) this Section 6.6(b) shall not be deemed to permit the Company Board to make a Company Adverse Change Recommendation except as and to the extent permitted by Section 6.1(b) or (c); and (B) any such Person is purporting to act on behalf of any of the Acquired Companies communication or otherwise, disclosure shall be deemed to be a breach Company Adverse Change Recommendation unless it is accompanied by a statement of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board expressly reaffirming the Company Board Recommendation in connection with such communication or its Special Committee concludes in good faith, after consultation with disclosure.
(c) In addition to the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary other obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes set forth in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Personthis Section 6.6, the Company receives from shall promptly (within one (1) Business Day) notify Parent in writing of any Takeover Proposal or Takeover Inquiry (and of any material amendments or modifications thereto), or any request for information with respect to any Takeover Proposal or Takeover Inquiry, that is received during the Pre-Closing Period, including the material terms and conditions of any Takeover Proposal, Takeover Inquiry or request received during the Pre-Closing Period (unless the Takeover Proposal or Takeover Inquiry is in written form, in which case the Company shall give Parent a copy thereof and any material amendments or modifications thereto) and the identity of the Person making such Takeover Proposal, Takeover Inquiry or request.
(d) The Company shall, and shall direct its Representatives to cease immediately all discussions and negotiations that commenced prior to the Agreement Date regarding any Takeover Proposal or Takeover Inquiry. The Company also shall promptly (and in any event within three (3) Business Days following the Agreement Date) (A) request in writing that each Person an that has heretofore executed a confidentiality agreement containing customary limitations on in connection with its consideration of acquiring the use and disclosure of Company or any portion thereof to return or destroy all nonpublic written and oral confidential information heretofore furnished to such Person by or on behalf of the Company or any Company Subsidiary, and customary “standstill” provisions. As promptly as reasonably practicable following the (B) cease furnishing of nonpublic or making available any non-public information pursuant to this Section 6.3(a), regarding the Company shall provide to Parent any nonpublic information concerning or any of the Acquired Companies that is furnished Company Subsidiaries to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which including by prohibiting such Person from having access to any physical or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefromelectronic data rooms. Notwithstanding anything to the contrary herein, at any time prior nothing in this Section 6.6(d) shall be deemed to prevent the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XICompany, the Company Board Subsidiaries or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to from taking any Acquisition Proposal effective as of the date hereof, action otherwise permitted by Section 6.6(a) through (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(ac).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Credit Agreement (RhythmOne PLC), Agreement and Plan of Merger and Reorganization (YuMe Inc)
No Solicitation. (a) During Effective as of the Pre-Closing Perioddate of this Agreement and until the earlier of (1) the Effective Time and (2) the date of termination of this Agreement pursuant to the provisions of Section 10.1, the Company shall notneither Party will take nor will any Party permit any of its directors, officers, agents, employees, Affiliates, attorneys, accountants, financial advisers or other representatives (collectively, “Representatives”) to (directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, ): (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal encourage or take any action that could reasonably be expected intended to lead to an encourage the submission of any Acquisition Proposal, or (ii) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with regarding, or furnish to any Person in respect of, or otherwise cooperate any information with respect to, any an Acquisition Proposal; provided, (iv) approvehowever, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the approval and adoption of this Agreement and the transactions contemplated by the Required Company Shareholder Votethis Agreement by shareholders, nothing contained in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company shall prevent any Party from furnishing nonpublic information regarding the Acquired Companies to, or entering into engaging in negotiations or conducting discussions or negotiations with, any Person in response to a connection with an unsolicited bona fide written Acquisition Proposal that is submitted by such Person, if and to the Company by extent that (x) such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative Party’s Board of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes Directors determines in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, faith (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, advisors) that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal Proposal, and such Party’s Board of Directors determines in good faith (Dafter consultation with its outside legal counsel), in the exercise of its fiduciary duties, that to do otherwise would be inconsistent with its fiduciary duty to the shareholders of such Party, (y) prior to furnishing any such nonpublic information to to, or engaging in negotiations or discussions with, such Person, the Company such Party’s Board of Directors receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no more favorable to such Person by or on behalf Party than those set forth in the Confidentiality Agreement to which the Party is bound, and (z) such Party gives the other Party five business days’ prior written notice of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant its intention to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parenttake such action.
(b) From and after the execution Except as set forth in this Section 8.8, neither Party’s Board of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties Directors shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receiptwithhold, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify amend, change or modify, in each case in a manner adverse to the Buyer Parties, or fail to makeParty, the Company approval or recommendation by such Party’s Board Recommendationof Directors of this Agreement, and the Merger, (ii) approve, authorize approve or recommend, or propose publicly or approve, authorize or recommend, an recommend any Acquisition Proposal, or (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject with respect to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefromAcquisition Proposal. Notwithstanding anything to the contrary hereinforegoing, at any time if, prior to the earlier of the Required Company Stockholder Vote approval and the termination adoption of this Agreement pursuant to Article XIand the transactions contemplated by this Agreement by any Party’s shareholders, the Company such Party’s Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes Directors determines in good faith, faith (after consultation with its advisors), in the Company’s (or the Special Committee’s, as applicable) outside legal counselexercise of its fiduciary duties, that failure (x) the Acquisition Proposal constitutes a Superior Proposal, and (y) to take such action do otherwise would be inconsistent with its fiduciary duty to the fiduciary obligations shareholders of any Party, after giving five business days’ prior written notice to the other Party, specifying the material terms thereof and the identity of the Company Board to party making such proposal; provided, however, the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier identity of the Merger Effective Time and the termination party making such proposal shall not be identified if any Party is prohibited from such making disclosure pursuant to a written confidentiality agreement, such Party’s Board of Directors may (A) withhold, withdraw, amend, change or modify its approval or recommendation of this Agreement pursuant and the Merger or (B) enter into an agreement with respect to Article XIa Superior Proposal, and shall, in the Company case of (B), terminate this Agreement in accordance with Section 10.1; provided, however, that any Party shall have caused its financial and legal advisors to negotiate in good faith with any Party during such five business days to make such adjustments to the terms and conditions of this Agreement as would enable any Party to proceed with the Merger on such adjusted terms. Each Party shall, and shall cause its Representatives to, immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions or other action conducted by negotiations with any of the Acquired Companies or any of their respective Representatives parties that may be ongoing with respect to any Acquisition Proposal effective as of the date hereof. Both Parties agree that its obligation to hold a meeting of its shareholders or to otherwise submit this Agreement to its stockholders shall not be affected by the withholding, withdrawal, amendment, change or modification of its approval or recommendation in accordance with clause (A) above.
(c) The Parties will promptly (but in any event not later than 24 hours after its written receipt thereof) notify the other Party in writing of the existence of any proposal, discussion or negotiation received by either Party regarding any Acquisition Proposal, and each Party will promptly communicate to the other Party the identity of the party making such proposal or engaging in such discussion or negotiation and the material terms of any proposal, discussion or negotiation that it may receive regarding any Acquisition Proposal, but the Parties shall not be required to disclose the identity of the party making such proposal or engaging in such discussion or negotiation if prohibited from doing so pursuant to the terms of a written confidentiality agreement. Each Party will promptly provide to the other Party any information concerning the Party provided to any other Person in connection with any Acquisition Proposal which was not previously provided to any Party. The Parties will keep each other fully informed on a prompt basis of any discussions or negotiations relating to any Acquisition Proposal and of any amendments or proposed amendments to any of the material terms of any Acquisition Proposal.
(d) Each Party acknowledges that this Section 8.8 was a significant inducement for each Party to enter into this Agreement and the absence of such provision would have resulted in either (i) a material reduction in the Merger Consideration to be paid to the security holders of FCB or (ii) request that all confidential information previously furnished a failure to any third party be returned promptly and (iii) deny access induce Flag to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)enter into this Agreement.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Flag Financial Corp)
No Solicitation. (a) During Except as permitted by this Section 6.2, prior to the Pre-Closing Periodor the valid termination of this Agreement pursuant to Section 8.1, the Company shall not, directly or indirectlyand shall cause its Subsidiaries not to, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies representatives not to, directly or indirectly, :
(i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or encourage the making, submission, reaffirmation submission or announcement of any Acquisition Proposal;
(ii) furnish any non-public information regarding the Company to any Person for the purpose of encouraging, or in response to, an Acquisition Proposal;
(iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or take any action that could would reasonably be expected to lead to an Acquisition Proposal, Proposal (ii) furnish except to notify a Person that makes any nonpublic information regarding any of the Acquired Companies, inquiry or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection offer with or in response respect to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, the existence of the provisions of this Section 6.2);
(iv) approveadopt, endorse approve or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, acquisition agreement, agreement in principle or similar document other Contract with respect to an Acquisition Proposal;
(v) waive or release any Person from, or fail to use reasonable best efforts to enforce, any standstill agreement or any standstill provisions of any Contract contemplating in respect of a potential Acquisition Proposal; or
(vi) resolve or otherwise relating agree to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of do any of the Acquired Companiesforegoing. provided, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwisehowever, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoingthat, from the date hereof and prior notwithstanding anything to the adoption of this Agreement by the Required Company Shareholder Vote, nothing contrary contained in this Agreement (including this Section 6.3(a)) shallAgreement, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting and its representatives may engage in any such discussions or negotiations with, and provide any Person such information in response to a bona fide written Acquisition Proposal that is submitted to made or received after the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if date hereof, if: (A) neither such Acquisition Proposal does not arise out of a breach of this Section 6.2; (B) prior to providing any material non-public information regarding the Company nor to any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) Third Party in any respect that results in such response to an Acquisition Proposal, the Company receives from such Third Party (Bor there is then in effect with such party) an Acceptable Confidentiality Agreement; and (C) the Company Board (or its Special Committee concludes a committee thereof) determines in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputationadvisor, that (I) such Acquisition Proposal is either constitutes a Superior Proposal or could reasonably likely be expected to lead to a Superior Proposal and (DII) prior failure to furnishing engage in such discussions or negotiations and provide any such nonpublic information would be inconsistent with its fiduciary obligations under applicable Law. Prior to or concurrent with providing any non-public information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a)Third Party, the Company shall provide make such non-public information available to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of such non-public information has not been previously made available by the Company Parties shall promptlyto Parent or Parent’s representatives). Prior to the Acceptance Time, the Company will not be required to enforce, and in will be permitted to waive, any event within forty-eight (48) hours following the initial receipt by any Acquired Company provision of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) standstill or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibits or purports to prohibit them from providing such information an Acquisition Proposal being made to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (iior a committee thereof) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, if (iiiX) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board (or its Special Committee may take one or more of the actions described in the preceding clauses (ia committee thereof) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations of under applicable Law and (Y) the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedurespromptly (and in no event later than twenty-four (24) hours) notifies Parent and Merger Sub in writing of such waiver.
(db) Until the earlier of the Merger Effective Time The Company shall, and the termination of this Agreement pursuant to Article XIshall cause its representatives to, the Company shall immediately (i) immediately cease and cause to be terminated any existing solicitationsolicitation of, discussionor discussions or negotiations with, negotiation or other action conducted any Third Party relating to any Acquisition Proposal and (ii) terminate access by any of the Acquired Companies Person (other than Parent or Merger Sub or any of their respective Representatives with respect Affiliates or representatives) to any physical or electronic data room relating to any potential Acquisition Proposal. If the Company receives an Acquisition Proposal effective as of after the date hereof, then the Company shall promptly (iiand in no event later than twenty-four (24) request that all confidential information previously furnished to any third hours after receipt of such Acquisition Proposal) notify Parent in writing of such Acquisition Proposal (which notification shall include the identity of the party be returned promptly making such proposal and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties material terms and their respective Representativesconditions thereof), in each caseand provide Parent with a copy of such Acquisition Proposal, subject and shall thereafter keep Parent reasonably informed of any material change to the Company’s rights and obligations in Section 6.3(a)terms of such Acquisition Proposal.
(ec) The Nothing contained in this Section 6.2 or elsewhere in this Agreement shall prohibit the Company, the Company agrees Board (or any committee thereof) or their representatives from taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9(f) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or making any other disclosure or communication required by applicable Law or the rules of any relevant securities exchange; provided that any such disclosure does not contain a Change in Recommendation, and provided, further that any such communication that reaffirms the Company Board Recommendation shall be deemed not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is be a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentChange in Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Zynerba Pharmaceuticals, Inc.)
No Solicitation. (a) During From the Pre-Closing Perioddate hereof until the earlier of the Effective Time or the termination of this Agreement, the Company shall notnot and will not authorize or permit any of its officers, directly directors, employees, financial advisors, representatives or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, agents to (i) solicit, seek, initiate, encourage, induce or facilitate encourage any inquiries regardingor proposals that constitute, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could would be reasonably be expected likely to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets of Company and its Subsidiaries, taken as whole (other than the sale of inventory or obsolete property in the ordinary course of business), sale of shares of its capital stock (including without limitation by way of a tender offer) or similar transaction involving such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an Acquisition Proposal"ACQUISITION PROPOSAL"), (ii) furnish engage in negotiations or discussions with any nonpublic information regarding any of the Acquired CompaniesPerson other than Parent or its affiliates (a "THIRD PARTY") concerning, or provide any access to the books, records or personnel of any of the Acquired Companies, non-public information to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect relating to, any Acquisition Proposal, or (iviii) approve, endorse agree to or recommend any Acquisition Proposal or (v) enter into any letter of intentProposal; PROVIDED, arrangementHOWEVER, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing contained in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit shall prevent Company or the Company Board or the Special Committee from (A) furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a connection with an unsolicited bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period or modifying or withdrawing its recommendation with respect to the transactions contemplated hereby or recommending an unsolicited bona fide written Acquisition Proposal to the Shareholders, if and only to the extent that (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B1) the Company Board or its the Special Committee concludes believes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, faith (C) the Company Board or its Special Committee concludes in good faith, after consultation with its financial and legal counsel and an independent financial advisor of nationally recognized reputation, advisors) that such Acquisition Proposal is reasonably likely capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to lead the Shareholders than the transactions contemplated by this Agreement, and the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is required for the Company Board or the Special Committee to a Superior Proposal comply with its fiduciary duties to the Shareholders under applicable law and (D2) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within fortynon-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish public information to, or enter entering into discussions or negotiations with, such Person, the Company Board or the Special Committee receives from such Person an executed confidentiality and standstill agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement, dated April 12, 1999 between Parent and Company (the "CONFIDENTIALITY AGREEMENT"); or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. The Company shall keep Parent agrees not to release any Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably informed on a prompt basis as be considered likely to any material developments regarding any such make, an Acquisition Proposal, indicationunless the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is necessary for the Company Board or the Special Committee to comply with its fiduciary duties to its Shareholders under applicable law.
(b) Company shall notify Parent immediately after receipt by Company (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to its properties, books or records by any Person that informs Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the terms and conditions of such proposal, inquiry or request. None contact (including, without limitation, the identity of the Acquired Companies shallPerson making the Acquisition Proposal). Company shall continue to keep Parent informed, after on a current basis, of the date hereof, enter into status of any confidentiality agreement that would prohibit them from providing such information to Parentdiscussions or negotiations and the terms being discussed or negotiated.
(c) The Neither the Company Board and nor the Special Committee may not (i) shall withdraw, qualify modify or modifychange, or propose to withdraw, modify or change, in a manner adverse to the Buyer Parties, or fail to makeParent, the Company Board Recommendation, (ii) approve, authorize approval or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken recommendation by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its the Special Committee Committee, as the case may take one or more be, of the actions described in Offer, this Agreement or the preceding clauses (i) – (iv) in response to a Superior Proposal if Merger unless the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counselthe case may be, determines, in the exercise of its fiduciary duties, that failure it is necessary to take such action would be inconsistent with the fiduciary obligations of the do so. Nothing contained in this Section 6.3(c) will prohibit Company Board from taking and disclosing to the Company’s shareholders Shareholders a position contemplated by Rule 14e-2 promulgated under applicable Legal Requirements, but only after following the Superior Proposal Termination ProceduresExchange Act.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
No Solicitation. (a) During the Pre-Closing Period, the Company Stockholder (in Stockholder’s capacity as such) shall not, directly or indirectly, and shall cause not authorize or permit any of Stockholder’s (to the extent applicable) directors, officers or other Acquired Companiesemployees, its Representatives and the Representatives of the controlled affiliates, or any investment banker, attorney or other Acquired Companies not advisor or representative retained by Stockholder (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate, or knowingly encourage, facilitate or knowingly induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to of, an Acquisition Proposal, (ii) furnish to any nonpublic Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information regarding relating to the Company or any of the Acquired Companiesits Subsidiaries, or provide any afford access to the booksbusiness, properties, assets, books or records of the Company or personnel of any of the Acquired Companies, its Subsidiaries to any Person in connection with (other than Parent, Merger Sub or in response to an Acquisition Proposal any designees of Parent or an inquiry or indication of interest that could reasonably be expected to lead to Merger Sub), an Acquisition Proposal, (iii) participate or engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any to an Acquisition Proposal, (iv) approve, endorse or recommend any an Acquisition Proposal or Proposal, (v) execute or enter into any letter of intent, arrangementmemorandum of understanding or Contract contemplating or otherwise relating to an Acquisition Transaction.
(b) Stockholder shall immediately cease any and all existing activities, understandingdiscussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal or Acquisition Transaction. From and after the date hereof until the Expiration Date, agreementShareholder shall as promptly as practicable (and in any event within 24 hours) (i) notify Parent of (x) any Acquisition Proposal it receives in its capacity as a stockholder of the Company, agreement (y) any request it receives in principle its capacity as a stockholder of the Company for non-public information relating to the Company or its Subsidiaries that could lead to an Acquisition Proposal or an Acquisition Transaction, and (z) any inquiry it receives in its capacity as a stockholder of the Company that could lead to an Acquisition Proposal, (ii) if such Acquisition Proposal, request or inquiry is in writing, deliver to Parent a copy of such Acquisition Proposal, request or inquiry and any related draft agreements and other written material setting forth the terms and conditions of such Acquisition Proposal, and (iii) if such Acquisition Proposal, request or inquiry is oral, provide to Parent a detailed summary thereof. Stockholder shall keep Parent reasonably informed on a prompt and timely basis of the status and material details of any such Acquisition Proposal or Acquisition Transaction and with respect to any material change to the terms of any such Acquisition Proposal or Acquisition Transaction within 24 hours of any such material change.
(c) Without limiting the generality of the foregoing, Stockholder acknowledges and hereby agrees that any violation of the restrictions set forth in this Section 10 by Stockholder or any of Stockholder’s Representatives shall be deemed to be a breach of this Section 10 by Stockholder. Stockholder shall not enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties unless and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of until this Agreement is terminated pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresterms.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Support Agreement (Salesforce Com Inc), Support Agreement (ExactTarget, Inc.)
No Solicitation. (a) During Except as permitted by this Section 6.3, during the Pre-Closing Period, the Company shall not, directly or indirectlyshall cause its Subsidiaries to not, shall not authorize its Representatives to, and shall cause the other Acquired Companies, direct its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce initiate or knowingly facilitate any inquiries regarding, or encourage (including by way of furnishing non-public information) the making, submission, reaffirmation or announcement making of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish engage in or otherwise participate in any nonpublic information regarding discussions (except to notify a Person that makes any inquiry or offer with respect to an Acquisition Proposal of the Acquired Companiesexistence of the provisions of this Section 6.3 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal) or negotiations regarding, or provide any access to the books, records or personnel of any of the Acquired Companies, furnish to any other Person any non-public information in connection with or in response to an Acquisition Proposal for the purpose of knowingly encouraging or an inquiry or indication of interest that could reasonably be expected to lead to facilitating, an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, acquisition agreement, agreement in principle or similar document agreement with respect to an Acquisition Proposal or (iv) waive or release any Person from, fail to use reasonable best efforts to enforce any standstill agreement or any standstill provisions of any Contract contemplating entered into in respect of a potential Acquisition Proposal; provided, however, the Company Board may take, or otherwise omit to take, any of the actions contemplated by clause (iv) of this Section 6.3 in the event that the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would breach the fiduciary duties of the Company Board under applicable Law. The Company and its directors, officers and employees shall, and the Company shall direct its other Representatives to, (A) cease and cause to be terminated any solicitation and any and all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal and (B) terminate access by any Person (other than Parent, Purchaser, the Company or any of their respective Affiliates or Representatives) to any physical or electronic data room relating to any potential Acquisition TransactionProposal. Without limiting For the foregoingavoidance of doubt, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any a director or officer of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, Company shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding .
(b) Anything to the foregoingcontrary herein notwithstanding, from if at any time on or after the date hereof Agreement Date and prior to the adoption of this Agreement by the Required Company Shareholder VoteOffer Acceptance Time, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a of its Representatives receives an unsolicited bona fide written Acquisition Proposal that is submitted to from any Person or group of Persons, which Acquisition Proposal was made or renewed on or after the Company by such Person during such period (Agreement Date and did not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor from any Representative material breach of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal6.3, (B) and the Company Board or its Special Committee concludes determines in good faith, after consultation with the Company’s or the Special Committee’s financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is constitutes or could reasonably likely be expected to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such PersonOffer, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of then the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information its Representatives may (i) furnish, pursuant to this Section 6.3(a)(but only pursuant to) an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company to the Person or group of Persons who has made such Acquisition Proposal; provided, that the Company shall promptly provide to Parent any nonpublic non-public information concerning any of the Acquired Companies Company that is furnished provided to any third Person or its Representatives given such access which was not previously provided to ParentParent or its Representatives and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal.
(bc) From and after Following the execution of this AgreementAgreement Date, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, (i) promptly (and in any event within forty-eight two (482) hours following the initial receipt by any Acquired Company Business Days) notify Parent of any Acquisition Proposalinquiry, proposal or offer received by the Company or any indication by any Person considering making of its Representatives that the Company believes is or may lead to an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) provide to Parent a summary of the material terms and conditions of such any Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) including the identity of the Person making such Acquisition Proposal Proposal, together with copies of all documents and (iv) the Company’s intention to furnish information towritten or electronic communications received, directly or enter into discussions or negotiations withindirectly, from such Person. The Company shall keep Parent reasonably informed on a prompt basis as Person relating to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize keep Parent reasonably informed of any material developments, discussions or permit the Company to enter into negotiations regarding any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or on a reasonably prompt basis and (iv) permit upon the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Companywritten request of Parent, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier reasonably inform Parent of the Required Company Stockholder Vote and the termination status of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Proceduresany Acquisition Proposal.
(d) Until the earlier of the Merger Effective Time and the termination of Nothing in this Agreement pursuant to Article XIAgreement, including this Section 6.3, shall restrict the Company shall immediately from (i) cease taking and cause disclosing to be terminated any existing solicitation, discussion, negotiation or other action conducted by any the stockholders of the Acquired Companies Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or any Item 1012(a) of their respective Representatives with respect to any Acquisition Proposal effective as of Regulation M-A promulgated under the date hereofExchange Act, (ii) request that all confidential information previously furnished making any “stop, look and listen” communication pursuant to any third party be returned promptly and Rule 14d-9(f) promulgated under the Exchange Act or (iii) deny access making any legally required disclosure to any data room containing any the stockholders of the Company (provided, that such information to any third party (other than disclosure includes an express reaffirmation of the Buyer Parties and their respective RepresentativesCompany Board Recommendation), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any none of the Acquired Companies is foregoing actions shall be deemed to constitute a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of ParentCompany Adverse Change Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Supernus Pharmaceuticals, Inc.), Merger Agreement (Adamas Pharmaceuticals Inc)
No Solicitation. (a) During From the Pre-Closing Perioddate hereof until the Closing, the Company shall not, directly or indirectlyand its subsidiaries, and shall cause the other Acquired Companiesofficers, its Representatives and the Representatives directors, financial or legal advisors of the other Acquired Companies not toCompany and its subsidiaries will not, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposalsolicit, (ii) furnish any nonpublic information regarding any of the Acquired Companies, initiate or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend encourage any Acquisition Proposal or (vii) enter into any letter of intent, arrangement, understanding, agreement, agreement engage in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, or disclose any Person nonpublic information relating to the Company or any of its subsidiaries or afford access to the properties, books or records of the Company or any of its subsidiaries to, any person that may be considering making, or has made, an Acquisition Proposal; provided that, the Company may, in response to an unsolicited written proposal from a bona fide written third party regarding an Acquisition Proposal that is submitted to engage in the activities specified in clause (ii), if the Board of Directors of the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes determines in good faith, after consultation with obtaining and taking into account the Company’s or the Special Committee’s advice of outside legal counsel, that failure to take such action would is required for the Board of Directors of the Company to comply with its fiduciary duties under applicable law. The Company will promptly (and in no event later than 24 hours after having received the relevant Acquisition Proposal) notify the Parent (which notice shall be inconsistent provided orally and in writing and shall identify the person making the Acquisition Proposal and set forth the material terms thereof) after having received any Acquisition Proposal, or request for nonpublic information relating to the Company or any of its subsidiaries or for access to the properties, books or records of the Company or any of its subsidiaries by any person who is considering making or has made an Acquisition Proposal. The Company will, to the extent consistent with the fiduciary duties of the Company's Board of Directors under applicable law, keep the Parent fully informed of the status and details of any such Acquisition Proposal or request. The Company shall, and shall cause its subsidiaries, and shall instruct the directors, officers and financial and legal advisors of the Company and its subsidiaries to, cease immediately and cause to be terminated all activities, discussions or negotiations, if any, with any persons conducted heretofore with respect to any Acquisition Proposal. Notwithstanding any provision of this Section, nothing in this Section shall prohibit the Company or its Board of Directors from taking and disclosing to the Company's stockholders a position with respect to an Acquisition Proposal by a third party to the extent required under the Exchange Act or from making such disclosure to the Company's stockholders which, in the judgment of the Board of Directors, taking into account the advice of outside counsel, is required under applicable law; provided that nothing in this sentence shall affect the obligations of the Company and its Board to the Company’s shareholders of Directors under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor any other provision of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to ParentAgreement.
(b) From the date hereof until the Closing, the Parent and after its subsidiaries, and the execution of this Agreementofficers, except to the extent that doing so would result in a breach of its fiduciary dutiesdirectors, each financial or legal advisors of the Company Parties shall promptly, Parent and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receiptits subsidiaries will not, directly or indirectly, of (i) take any such inquiriesaction to solicit, negotiations initiate or proposals relating to encourage any Acquisition Proposal by the Company, or (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not engage in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep or disclose any nonpublic information relating to the Parent reasonably informed on a prompt basis as or any of its subsidiaries or afford access to any material developments regarding any such Acquisition Proposalthe properties, indication, inquiry books or request. None records of the Acquired Companies shallParent or any of its subsidiaries to, after the date hereof, enter into any confidentiality agreement person that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Partiesbe considering making, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommendhas made, an Acquisition Proposal; provided that, (iii) authorize or permit the Company Parent may, in response to enter into any agreement (an “Acquisition Agreement”) contemplating unsolicited written proposal from a third party regarding an Acquisition Proposal or engage in the activities specified in clause (iv) permit ii), if the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier Board of Directors of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes Parent determines in good faith, after consultation with obtaining and taking into account the Company’s (or the Special Committee’s, as applicable) advice of outside legal counsel, that failure to take such action would is required for the Board of Directors of the Parent to comply with its fiduciary duties under applicable law. The Parent will promptly (and in no event later than 24 hours after having received the relevant Acquisition Proposal) notify the Company (which notice shall be inconsistent provided orally and in writing and shall identify the person making the Acquisition Proposal and set forth the material terms thereof) after having received any Acquisition Proposal, or request for nonpublic information relating to the Parent or any of its subsidiaries or for access to the properties, books or records of the Parent or any of its subsidiaries by any person who is considering making or has made an Acquisition Proposal. The Parent will, to the extent consistent with the fiduciary obligations duties of the Company Parent's Board to the Company’s shareholders of Directors under applicable Legal Requirementslaw, but only after following keep the Superior Proposal Termination Procedures.
(d) Until the earlier Company fully informed of the Merger Effective Time status and details of any such Acquisition Proposal or request. The Parent shall, and shall cause its subsidiaries, and shall instruct the termination directors, officers and financial and legal advisors of this Agreement pursuant to Article XIthe Parent and its subsidiaries to, the Company shall cease immediately (i) cease and cause to be terminated all activities, discussions or negotiations, if any, with any existing solicitation, discussion, negotiation or other action persons conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any Acquisition Proposal. Notwithstanding any provision of this Section, nothing in this Section shall prohibit the Parent or its Board of Directors from taking and disclosing to the Parent's stockholders a position with respect to an Acquisition Proposal effective as by a third party to the extent required under the Exchange Act or from making such disclosure to the Parent's stockholders which, in the judgment of the date hereofBoard of Directors, (ii) request taking into account the advice of outside counsel, is required under applicable law; provided that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than nothing in this sentence shall affect the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, Parent and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request Board of ParentDirectors under any other provision of this Agreement.
Appears in 2 contracts
Sources: Governance Agreement (Continental Airlines Inc /De/), Governance Agreement (Northwest Airlines Corp)
No Solicitation. (a) During From the Pre-date hereof until the Closing Periodor the earlier termination of this Agreement in accordance with its terms, the Company shall not, directly or indirectlyindirectly through any of its Subsidiaries or affiliates or any of its or their respective Representatives, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding permit any of the Acquired Companies, its Subsidiaries or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies affiliates or any of their respective Representatives may receive to, (1) initiate, solicit or knowingly facilitate or knowingly encourage an Acquisition Proposal or (2) engage with any third party in any discussions or negotiations concerning, or furnish any confidential information to any third party in connection with, an Acquisition Proposal, or any inquiry or proposal that would constitute an Acquisition Proposal if it were a bona fide written proposal or offer (except to notify such third party of the existence of the provisions of this Section 6.08), provided, however, for purposes of this Section 6.08 the term “affiliate” shall not include any Person that becomes an affiliate of the Company after the date hereof, advise Parent orally and in writing of (i) this Agreement without any action on the receipt, directly or indirectly, part of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company. Notwithstanding anything to the contrary in the previous sentence, (ii) prior to the material terms and conditions of such Acquisition ProposalAcceptance Date, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to Company may furnish information to, or enter into discussions or negotiations with, any Person that has made an Acquisition Proposal if, and only to the extent that: (A) the receipt of such Person. The Company shall keep Parent reasonably informed on Acquisition Proposal did not result from a prompt basis as to breach of (1) clause (1) of the first sentence of this Section 6.08(a) or (2) any other provision of this Section 6.08 in any material developments regarding any respect; (B) such Acquisition Proposal constitutes a Superior Proposal or the Company Board, after consulting with the Company’s outside legal and financial advisors, determines in good faith that (1) such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing furnishing such information and entering into such discussions or negotiations, could reasonably be expected to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, result in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if and (2) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the its fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal RequirementsLaw; and (C) prior to furnishing such information, but only the Company receives from such Person an executed confidentiality agreement on customary terms that are no less favorable to the Company than the terms of the Confidentiality Agreement; provided, however, that the Company may, after following making the Superior Proposal Termination Proceduresdetermination described in clause (B) above, enter into discussions or negotiations solely with respect to entering into such confidentiality agreement and will not be deemed to be in breach of this Section 6.08 as a result thereof.
(db) Until From the date hereof until the Closing or the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XIin accordance with its terms, the Company shall promptly, but in any event within twenty-four (24) hours, notify Parent following receipt by the Company of any Acquisition Proposal, the material terms thereof and material conditions thereto and the identity of the Person making such Acquisition Proposal, as well as any material modification of or amendment thereto, or of any bona fide communication by any Person that affirmatively states that it relates to, or could lead to, or that any party is contemplating, a potential Acquisition Proposal, including the identity of the Person making or on whose behalf such communication was made and the other material facts of such communication, and the Company will keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to such Acquisition Proposal or other communication.
(c) The Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions or other action negotiations with any Persons conducted by heretofore with respect to any Acquisition Proposal. The Company shall promptly request that all confidential information previously provided to any such Persons be returned or destroyed in accordance with the confidentiality agreements in effect with such Persons that remain in effect as of the Acquired Companies or any date of their respective Representatives this Agreement and, subject to the second sentence of Section 6.08(a) with respect to any Acquisition Proposal effective as of received after the date hereofhereof and compliance with the procedures provided therein, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) shall deny access to any data room (virtual or actual) containing any such confidential information to any third party all such Persons.
(other than d) Nothing contained in this Section 6.08 prohibits or will be construed as prohibiting the Buyer Parties Company or the Company Board from (1) taking and their respective Representatives), in each case, subject disclosing to the Company’s rights and shareholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (2) making any disclosure to the Company’s shareholders if, in the good faith judgment of the Company Board after consultation with outside counsel, failure to make such disclosure would be inconsistent with its fiduciary obligations in Section 6.3(a)under applicable Law.
(e) The Except as otherwise permitted hereby, from the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, neither the Company agrees not to release Board nor any committee thereof shall (1) approve or accept any Acquisition Proposal, (2) cause or permit the release Company to agree to or enter into any letter of any Person fromintent, or to waive or permit the waiver agreement in principle, memorandum of any provision ofunderstanding, any confidentialityterm sheet, “standstill” merger agreement, acquisition agreement, option agreement, joint venture agreement, license agreement, stock purchase agreement or similar agreement with respect to which any Acquisition Proposal or (3) fail to make, withdraw, modify or qualify in a manner adverse to Parent or Purchaser, or agree or publicly propose to withdraw, modify or qualify in a manner adverse to Parent or Purchaser, the Company Board Recommendation, or recommend, or agree or publicly propose to recommend, an Acquisition Proposal, or announce that an Acquisition Proposal constitutes a Superior Proposal (each such action described in clause (3) being an “Adverse Recommendation Change”).
(f) Notwithstanding anything to the contrary in this Section 6.08, at any time prior to the Acceptance Date, the Company Board may, following receipt of an Acquisition Proposal that constitutes a Superior Proposal, make an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to Section 9.01(i) so as to concurrently with such termination enter into a definitive agreement providing for the transactions contemplated by such Superior Proposal, but only if (1) the Company promptly notifies Parent, in writing, at least two (2) Business Days before taking such action, of its intention to do so, attaching the most current version of the Acquired Companies proposed agreement under which such Acquisition Proposal is proposed to be consummated or, where no such copy is available, a partyreasonably detailed description of such Acquisition Proposal, and will use the identity of the third party making the Acquisition Proposal, and (2) Parent does not make, within three (3) Business Days (or two (2) Business Days in the case of any subsequent offer) after its reasonable best efforts receipt of that written notification, an offer that the Company Board determines, in good faith, after consultation with its outside financial and legal advisors, is more favorable to enforce the Company’s shareholders than such Acquisition Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Acquisition Proposal shall require a new written notification from the Company, provided that a two (2) Business Day period shall apply under clause (2) of this Section 6.08(f)). During any three (3) Business Day (or two (2) Business Day, in the case of subsequent offers) period prior to its effecting an Adverse Recommendation Change pursuant to this Section 6.08(f) or termination pursuant to Section 9.01(i), the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent and its Representatives regarding any revisions to be enforced each such agreement at the request terms of the Transactions proposed by Parent.
Appears in 2 contracts
Sources: Merger Agreement (Intelligroup Inc), Merger Agreement (Intelligroup Inc)
No Solicitation. (a) During the Pre-Closing Period, the Company SEQUUS shall not, and shall cause its Subsidiaries not to, and shall use its best efforts to cause its and its Subsidiaries' respective officers and directors not to, and shall use commercially reasonable efforts to cause its non-officer employees, investment bankers, attorneys or other agents retained by or acting on behalf of SEQUUS or any of its Subsidiaries not to: (i) initiate, solicit or knowingly encourage, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation making of any proposal that constitutes or announcement of is reasonably likely to lead to any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal(as defined in Section 5.2(c) hereof), (ii) furnish any nonpublic information regarding any of the Acquired Companies, engage in negotiations or provide any access discussions (other than to advise as to the books, records existence or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation substance of the restrictions set forth in this Section 6.3(a5.2) by with, or furnish any Representative of non-public information or data to, any of third party relating to an Acquisition Proposal, or (iii) enter into any agreement with a Potential Acquiror (other than a confidentiality, standstill and nonsolicitation agreement which satisfies the Acquired Companies, whether requirements set forth below) with respect to any Acquisition Proposal or not such Person is purporting approve any Acquisition Proposal. Notwithstanding anything to act on behalf of the contrary contained in this Section 5.2 or in any of the Acquired Companies or otherwise, shall be deemed to be a breach other provision of this Section 6.3(aAgreement, SEQUUS and its board of directors (i) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing may participate in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, with or furnish non-public information or data to any Person in response to a bona fide written third party that has made an unsolicited Acquisition Proposal that is submitted (a "Potential Acquiror") and/or (ii) subject to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior provisions of Section 5.2(b), may approve or accept an unsolicited Acquisition Proposal if the board of directors of SEQUUS determines in good faith (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or after receiving written advice from its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputationadvisor, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined in Section 5.2(d) hereof), and (DB) prior following consultation with outside legal counsel, that the failure to furnishing participate in such discussions or negotiations or to furnish such information or approve or accept an Acquisition Proposal would violate the board's fiduciary duties under applicable law. SEQUUS agrees that any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral non-public information furnished to such Person by or on behalf a Potential Acquiror will be furnished pursuant to a confidentiality, standstill and nonsolicitation agreement containing provisions at least as favorable to SEQUUS as the confidentiality, standstill and nonsolicitation provisions of the Company and customary “standstill” provisionsConfidentiality Agreements (as defined in Section 5.3). As promptly In the event that SEQUUS shall determine to provide any information as reasonably practicable following the furnishing of nonpublic information pursuant described above, or shall receive any Acquisition Proposal (or any material amendment to this Section 6.3(aan Acquisition Proposal previously received), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties it shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal24 hours, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and inform ALZA in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating as to any Acquisition Proposal by the Company, (ii) the material terms that fact and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) shall furnish to ALZA the identity of the Person making recipient of such information to be provided and/or the Potential Acquiror and the terms of such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parentamendment).
(cb) The Company Board Except as provided in this Section 5.2, the board of directors of SEQUUS shall recommend to its stockholders approval of this Agreement and the Special Committee may Merger. The board of directors of SEQUUS shall not (i) withdraw, qualify withdraw or modify or propose to withdraw or modify, in a any manner adverse to ALZA, its approval and recommendation of this Agreement and the Buyer Parties, Merger or fail to make, the Company Board Recommendation, (ii) approve, authorize approve or recommend, or propose publicly or approve, authorize to approve or recommend, an any Acquisition Proposal unless, in each case, the board has (x) determined that such Acquisition Proposal is a Superior Proposal, (iiiy) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes determined in good faith, after following consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that the failure to take such action would be inconsistent with violate the board's fiduciary obligations of the Company Board to the Company’s shareholders duties under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
law and (dz) Until the earlier given at least 72 hours prior written notice to ALZA of the Merger Effective Time and the termination its determination under clause (y) of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a5.2(b).
(ec) The Company agrees not For purposes of this Agreement, "Acquisition Proposal" shall mean any bona fide proposal (which may be subject to release a "due diligence" condition), whether in writing or permit the release otherwise, made by a Third Party (as defined below) for: (i) a transaction or series of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement related transactions pursuant to which any Person (or any group of Persons acting in concert for the specific purpose of allowing SEQUUS to evade the provisions of this Section 5.2) other than ALZA, SEQUUS or Merger Sub, or any affiliate thereof (a "Third Party"), acquires or would acquire (upon completion of such transaction or series of related transactions) shares (or securities exercisable for or convertible into shares) representing more than twenty percent (20%) of the Acquired Companies is outstanding shares of SEQUUS Common Stock, pursuant to a partytender offer or exchange offer or otherwise; (ii) a merger, consolidation, share exchange or other business combination involving SEQUUS or any of its subsidiaries if, upon consummation of such merger, consolidation, share exchange or other business combination, such Third Party (or its shareholders) owns or would own more than twenty percent (20%) of the outstanding equity securities of SEQUUS or any of its subsidiaries or the entity surviving such merger or business combination or resulting from such consolidation; (iii) any other transaction or series of related transactions pursuant to which such Third Party acquires or would acquire (upon completion of such transaction or series of related transactions) primary control of assets of SEQUUS or any of its subsidiaries (including, for this purpose, SEQUUS IP Rights or SEQUUS product rights and will use its reasonable best efforts to enforce or cause outstanding equity securities of subsidiaries of SEQUUS) if the aggregate dollar value of the consideration proposed to be enforced each paid by such agreement at Third Party to SEQUUS or its Subsidiary in such transaction exceeds $100 million; or (iv) any transaction or series of related transactions pursuant to which such Third Party acquires or would acquire (upon completion of such transaction or series of related transactions) control of the request board of Parentdirectors of SEQUUS or by which nominees of such Third Party are (or would be) elected or appointed to a majority of the seats on the board of directors of SEQUUS.
Appears in 2 contracts
Sources: Merger Agreement (Sequus Pharmaceuticals Inc), Merger Agreement (Alza Corp)
No Solicitation. (a) During From and after the Pre-Closing Perioddate of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article 7, and except as otherwise provided for in this Agreement, the Company shall and its Subsidiaries will not, directly nor will they authorize or indirectlyknowingly permit any of their respective officers, and shall cause the directors, controlled affiliates or employees or any of their respective investment bankers, attorneys or other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not advisors or representatives to, directly or indirectly, : (i) solicit, initiate, encourage, or take an action intended to encourage or induce or facilitate any inquiries regarding, or the making, submission, reaffirmation submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any nonpublic information regarding any of the Acquired Companies, engage or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in (other than any officer, director, controlled affiliate or employee of the Parent or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Parent or any of its Subsidiaries) regarding, or furnish to any Person any information with respect to, or take any other action intended to facilitate any inquiries or the making of, any proposal that constitutes or otherwise cooperate with respect may reasonably be expected to lead to, any Acquisition Proposal, ; (iviii) approve, endorse or recommend any Acquisition Proposal Proposal; or (viv) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. Without limiting Notwithstanding the foregoingabove, it is agreed that any violation of prior to the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach approval of this Section 6.3(aAgreement and the Merger by the Company's shareholders at the Company General Meeting and (if applicable) by the Company. Notwithstanding 's creditors at the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Votecreditors meetings, nothing contained in this Agreement (including this Section 6.3(a)5.6) shall, subject to Section 6.3(b), shall prohibit the board of directors of the Company, in response to an unsolicited Acquisition Proposal that is not withdrawn, from engaging or participating in discussions or negotiations with and furnishing information to the party making such Acquisition Proposal, provided that the board of directors of the Company: (A) in good faith after consultation with the Company's financial advisors, concludes that the offer constitutes or could reasonably be expected to result in or lead to a Superior Proposal, and (B) determines in good faith after consultation with its outside legal counsel that such action is required in order for the board of directors of the Company from to comply with its fiduciary obligations to the Company's shareholders under applicable Legal Requirements; and provided further that (x) concurrently with furnishing nonpublic any such information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Personparty, the Company receives from such Person an executed confidentiality agreement containing customary limitations on gives the use and disclosure Parent written notice of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the such Person making such Acquisition Proposal or group and (iv) of the Company’s 's intention to furnish information to, or enter into discussions or negotiations with, such Personparty and (y) the Company receives from such party an executed confidentiality agreement at least as restrictive as the Confidentiality Agreement; and (z) prior to or contemporaneously with furnishing any such information to such party, the Company furnishes such non-public information to the Parent (to the extent such information has not been previously furnished by the Company to the Parent). The Company shall keep Parent reasonably informed on a prompt basis as to and its Subsidiaries will immediately cease any material developments regarding and all existing discussions or negotiations with any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action parties conducted by any of the Acquired Companies or any of their respective Representatives heretofore with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)Proposal.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Msystems LTD), Merger Agreement (M-Systems Flash Disk Pioneers LTD)
No Solicitation. (a) During From and after the Pre-Closing Perioddate hereof, the Company agrees (i) that it and its subsidiaries shall not, directly nor shall it or indirectlyits subsidiaries authorize or knowingly permit any director, and shall cause the other Acquired Companies, its Representatives and the Representatives officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other Acquired Companies not advisor or representative of the Company or any of its subsidiaries (collectively, the “Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action that could reasonably be expected knowingly to lead to an Acquisition Proposalfacilitate, any Takeover Proposal (iias defined below) furnish any nonpublic information regarding any of the Acquired Companies, or provide any access to the books, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect ofregarding, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning or data to make or implement, any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Takeover Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (in each case other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition a Takeover Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal made by the Company, Parent; (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company it shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation discussions or other action conducted by any of the Acquired Companies or any of their respective Representatives negotiations with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly persons conducted heretofore with a view to formulating a Takeover Proposal; and (iii) deny access that it shall immediately notify Parent of the receipt of any Takeover Proposal and that it shall keep Parent informed of the status of such Takeover Proposal; provided, however, that, at any time prior to any data room containing any obtaining the Stockholder Approval, the Company may, in response to a bona fide Takeover Proposal that the Board of Directors of the Company determines in good faith could reasonably be expected to lead to a Superior Proposal (as defined below) and which Takeover Proposal did not result from a breach of this Section 4.02, (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement (except that such confidentiality agreement shall not prohibit such person from making an unsolicited Takeover Proposal), provided that all such information is provided on a prior or substantially concurrent basis to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a partyParent, and will use (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its reasonable best efforts to enforce or cause to be enforced each representatives) regarding such agreement at the request of ParentTakeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (American Water Works Company, Inc.), Merger Agreement
No Solicitation. (a) During the Pre-Closing PeriodImmediately upon execution of this Agreement, the Company shall (and shall cause its officers, directors, employees, investment bankers, attorneys and other agents or representatives to) cease all discussions, negotiations, responses to inquiries (except as set forth in the proviso to this sentence) and other communications relating to any potential business combination with all third parties who, prior to the date hereof, may have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal (as hereinafter defined) with the Company; provided that, this Section 5.6(a) shall not prohibit activities permitted by Section 5.6(b) in response to an inquiry initiated after the date hereof.
(b) Prior to termination of this Agreement pursuant to Article VII hereof, the Company and its Subsidiaries shall not, nor shall the Company authorize or permit any officers, directors or employees of, or any investment bankers, attorneys or other agents or representatives retained by or acting on behalf of, the Company or any of its Subsidiaries to, (i) initiate, solicit or encourage, directly or indirectly, and shall cause the other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies not to, directly or indirectly, (i) solicit, initiate, encourage, induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal or take any action proposal that could reasonably be expected to lead to constitutes an Acquisition Proposal, (ii) engage or participate in negotiations or discussions with, or furnish any nonpublic information regarding any of the Acquired Companiesor data to, or provide take any access to the booksother action to, records facilitate any inquiries or personnel of making any of the Acquired Companiesproposal by, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead third party relating to an Acquisition Proposal, (iii) engage inenter into any agreement with respect to any Acquisition Proposal or approve an Acquisition Proposal, continue or otherwise (iv) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Proposal. Notwithstanding anything to the contrary contained in this Section 5.6 or in any other provision of this Agreement, prior to the Company Stockholders Meeting, the Company Board may participate in any discussions or negotiations with or furnish information to any Person third party making an unsolicited Acquisition Proposal (a “Potential Acquiror”) or approve or recommend an unsolicited Acquisition Proposal if (A) a majority of the disinterested directors of the Company Board determines in respect ofgood faith, after consultation with its independent financial advisor, that a Potential Acquiror has submitted to the Company a written Acquisition Proposal which sets forth a price or otherwise cooperate range of values to be paid by the Potential Acquiror and which, if consummated, would be more favorable to the Company’s stockholders, from a financial point of view, than the Merger (a “Superior Proposal”), (B) the Company Board has determined in good faith, based on consultation with respect toindependent financial advisor(s), that such Potential Acquiror is financially capable of consummating such Superior Proposal, and (C) a majority of the disinterested directors of the Company Board determines in good faith, after receiving advice from reputable outside legal counsel experienced in such matters (and the parties hereto agree that the law firm of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP is so experienced), that the failure to participate in such discussions or negotiations or to furnish such information or to approve or recommend such unsolicited Acquisition Proposal is inconsistent with the Company Board’s fiduciary duties under applicable law. In the event that the Company shall receive any Acquisition Proposal, it shall promptly (ivand in no event later than forty-eight (48) approvehours after receipt thereof) furnish to Parent the identity of the recipient of the Acquisition Proposal and of the Potential Acquiror, endorse or recommend the terms of such Acquisition Proposal, copies of such Acquisition Proposal and all information requested by the Potential Acquiror, and shall further promptly inform Parent in writing as to the fact such information is to be provided after compliance with the terms of the preceding sentence. Notwithstanding the foregoing, the Company shall not provide any non-public information to any such Potential Acquiror unless (1) it has prior to the date thereof provided such information to Parent and Merger Sub, and (2) the Company provides such non-public information pursuant to a nondisclosure agreement with terms that are at least as restrictive as those pursuant to the Confidential Disclosure Agreement (the “Reciprocal Confidentiality Agreement”), dated November 12, 2004, between Parent and the Company. Nothing contained herein shall prevent the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after receiving advice from reputable outside legal counsel experienced in such matters (v) and the parties hereto agree that the law firm of ▇▇▇▇▇ ▇▇▇▇▇▇ & Tremaine LLP is so experienced), such disclosure is required by applicable law. In addition to the foregoing, the Company shall not enter into any letter agreement concerning an Acquisition Proposal for a period of intentnot less than five (5) days after the Parent’s receipt of a copy of the Acquisition Proposal. Further, arrangementParent has the right to match or better any Superior Proposal of which it has been notified. New proposals from the third party may be made, understandingand Parent retains the same rights set forth above regarding such new proposals. If the Parent has not notified Company of its decision to match or better the Superior Proposal by the eleventh day after Company’s notification is received by Parent that the acquisition proposal is a Superior Proposal, agreementCompany may pay the Parent Termination Fee and terminate this Agreement in accordance with its terms and proceed with the Superior Proposal. If Parent notifies Company that it will match or better a Superior Proposal, agreement in principle this Agreement must be amended to reflect the matched or similar document bettered terms within two (2) days of Parent’s decision to so match or any Contract contemplating better the Superior Proposal. Upon such amendment, Company may not terminate this Agreement and must notify the party making the Superior Proposal that such proposal has been matched or otherwise relating bettered and that this Agreement has been amended to any reflect this fact. After such amendment to this Agreement, Company must, and must cause Company Bank and its representatives to, cease and terminate all discussions and negotiations regarding the previous Superior Proposal, unless a new Acquisition TransactionProposal is received that is determined to be a Superior Proposal pursuant to this Section 5.6. Without limiting the foregoing, it is agreed the Company understands and agrees that any violation of the restrictions set forth in this Section 6.3(a5.6(b) by any Representative of the Company or any of its Subsidiaries, or by any director or officer of the Acquired CompaniesCompany or any of its Subsidiaries or any financial advisor, attorney or other advisor or representative of the Company or any of its Subsidiaries, whether or not such Person person is purporting to act on behalf of the Company or any of the Acquired Companies its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 6.3(a5.6(b) by the Company. Notwithstanding the foregoing, from the date hereof and prior sufficient to the adoption of enable Parent to terminate this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject pursuant to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn7.1(d)(i) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and For the Special Committee may not (i) withdrawpurposes of this Agreement, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an “Acquisition Proposal” shall mean any proposal, (iii) authorize whether in writing or permit the Company to enter into otherwise, made by any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (person other than the Buyer Parties Parent and their respective Affiliatesits Subsidiaries to acquire “beneficial ownership” (as defined under Rule 13(d) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination Exchange Act) of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one twenty percent (20%) or more of the actions described in assets of, or twenty percent (20%) or more of the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations outstanding capital stock of any of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement or its Subsidiaries pursuant to Article XIa merger, consolidation, exchange of shares or other business combination, sale of shares of capital stock, sales of assets, tender offer or exchange offer or similar transaction involving the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a)its Subsidiaries.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Advanced Power Technology Inc), Merger Agreement (Microsemi Corp)
No Solicitation. (a) During the Pre-Closing PeriodImmediately upon execution of this Agreement, the Stockholders shall (and shall use best efforts to cause the Company shall and its officers, directors, employees, investment bankers, attorneys and other agents or representatives to) cease all discussions, negotiations, responses to inquiries and other communications with all third parties who, prior to the date hereof, may have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal with the Company.
(b) Prior to termination of this Agreement pursuant to Section 8 hereof, each Stockholder hereby covenants and agrees that he or she will not, directly or indirectly, and each Stockholder shall use best efforts to cause the Company and its officers, directors, employees, investment bankers, attorneys and other Acquired Companies, its Representatives and the Representatives of the other Acquired Companies agents or representatives not to, directly or indirectly, (i) solicit, initiate, solicit or encourage, induce directly or facilitate indirectly, any inquiries regarding, or the making, submission, reaffirmation or announcement making of any Acquisition Proposal or take any action proposal that could reasonably be expected to lead to constitutes an Acquisition Proposal, (ii) engage or participate in negotiations or discussions with, or furnish any nonpublic information regarding any of the Acquired Companiesor data to, or provide take any access to the booksother action to, records facilitate any inquiries or personnel of making any of the Acquired Companiesproposal by, to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead third party relating to an Acquisition Proposal, or (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as or approve an Acquisition Proposal; provided, that if a Stockholder is a director of the date hereofCompany, such Stockholder may, as such a director (but not as a stockholder), engage in the activities specified in (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each casebut only if and to the extent that the Company Board may do so pursuant to Section 5.6(b) of the Merger Agreement, and only subject to the Company’s rights conditions and obligations limitations set forth in said Section 6.3(a5.6(b).
. In the event that any Stockholder shall receive any Acquisition Proposal, he or she shall promptly (eand in no event later than 24 hours after receipt thereof) The Company agrees not furnish to release or permit Buyer the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any identity of the Acquired Companies is a partyPotential Acquiror, the terms of such Acquisition Proposal, copies of all information requested by the Potential Acquiror, and will use its reasonable best efforts shall further promptly inform Buyer in writing as to enforce or cause the fact such information is to be enforced each such agreement at provided after compliance with the request terms of Parent.the preceding sentence. Without limiting the
Appears in 2 contracts
Sources: Voting Agreement (Jelinek Richard C/), Voting Agreement (Lingenfelter John)
No Solicitation. (a) During From the Pre-Closing Perioddate of this Agreement until the Effective Time or the termination of this Agreement pursuant to Section 9.1, the Company shall agrees that it will not, directly and will not permit any of its Subsidiaries, or indirectlyany of its or their officers, and shall cause directors, employees, representatives, agents, or Affiliates, including any investment banker, attorney, or accountant retained by the other Acquired CompaniesCompany or any of its Subsidiaries (collectively, its Representatives and the Representatives of the other Acquired Companies not "Representatives"), to, directly or indirectly, indirectly (i) solicit, initiate, encouragesolicit or encourage or otherwise facilitate (including by way of furnishing information), induce or facilitate any inquiries regarding, or the making, submission, reaffirmation or announcement of any Acquisition Proposal or take any other action to facilitate, any inquiries or the making of any proposal or offer that could constitutes, or may reasonably be expected to lead to to, an Acquisition Proposal, (ii) furnish enter into or maintain or continue discussions or negotiate with any nonpublic information Person regarding an Acquisition Proposal or in furtherance of such inquiries or to obtain an Acquisition Proposal, or (iii) agree to, approve, recommend or endorse any Acquisition Proposal, or authorize or permit any of the Acquired CompaniesRepresentatives of the Company or any of its Subsidiaries to take any such action, and the Company shall promptly notify Parent of any such inquiries and proposals hereafter received by the Company or any of its Subsidiaries or by any such Representative, relating to any of such matters; provided however, that nothing contained in this Agreement shall prohibit the Board of Directors of the Company at any time prior to the earlier to occur of acceptance for payment of shares of Company Common Stock pursuant to the Offer or adoption of this Agreement by the stockholders of the Company from furnishing information (pursuant to a customary confidentiality agreement no more favorable to the party receiving information than the Confidentiality Agreement and consistent with the Company's obligations under this Agreement, including Section 7.3(c)) to, or provide any access to the booksengaging in discussions or negotiations with, records or personnel of any of the Acquired Companies, to any Person in connection with or in response to an unsolicited bona fide written Acquisition Proposal or an inquiry or indication of interest such Person that could reasonably be expected to lead to an Acquisition satisfies the requirements of a Superior Proposal, if, and only to the extent that, (iiiA) engage inthe Board of Directors of the Company, continue after consultation with outside legal counsel to the Company, determines in good faith that failure to do so would result in a breach of the fiduciary duty of the Board of Directors of the Company to the stockholders of the Company under applicable Law, and (B) prior to furnishing such information to, or otherwise participate in any entering into discussions or negotiations with any with, such Person in respect ofthe Company provides written notice to Parent to the effect that it is furnishing information to, or otherwise cooperate entering into discussions or negotiations with, such Person and the Company complies with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter Section 7.3(c). Taking the actions contemplated by the proviso to the prior sentence under the circumstances described therein will not be deemed to be a breach of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transactionthis Agreement. Without limiting the foregoing, it It is agreed understood that any violation of the restrictions set forth in this Section 6.3(a) 7.3 by any Representative of the Company or any of the Acquired Companiesits Subsidiaries, whether or nor not such Person is purporting to act on behalf of any of the Acquired Companies Company or otherwise, shall be deemed to be a breach of this Section 6.3(a) 7.3 by the Company.
(b) Except as expressly permitted by this Section 7.3, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by such Board of the Offer or the Merger as set forth in Section 2.2, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar AGREEMENT AND PLAN OF MERGER agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal. Notwithstanding the foregoing, from the date hereof and prior to the earlier to occur of acceptance for payment of shares of Company Common Stock pursuant to the Offer or adoption of this Agreement by the Required stockholders of the Company, the Board of Directors of the Company Shareholder Vote, nothing in may terminate this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if but only (A) neither to the Company nor any Representative extent that the Board of any Directors of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faithCompany, after consultation with outside legal counsel to the Company’s or the Special Committee’s outside legal counsel, determines in good faith that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing do so would result in a breach of its the fiduciary duties, each duty of the Board of Directors to the stockholders of the Company Parties under applicable Law, (B) if the Company and the Board of Directors of the Company have complied with all the provisions of this Section 7.3, (C) after the third day following Parent's receipt of written notice advising Parent that the Board of Directors of the Company is prepared to accept a Superior Proposal, specifying the principal terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal and (D) if concurrently with such termination, the Company enters into an Acquisition Agreement with respect to such Superior Proposal and pays to Parent the Termination Fee and the out-of-pocket fees and expenses incurred by Parent, Purchaser and their Affiliates in connection with the transactions contemplated by this Agreement pursuant to Section 9.5(b).
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 7.3, the Company shall promptlypromptly advise Parent, orally and in writing, of any event within forty-eight (48) hours following the initial receipt by any Acquired Company request for information or of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material principal terms and conditions of such request or Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) Proposal and the identity of the Person making such request or Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such PersonProposal. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding of the status and details (including amendments or proposed amendments) of any such request or Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) authorize or permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or (iv) permit the Acquired Companies to take any action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any “excess share” or similar ownership limitation provisions (including the Ownership Limitation) applicable to the Company, any Person (other than the Buyer Parties and their respective Affiliates) or any action taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any existing solicitation, discussion, negotiation or other action conducted by any of the Acquired Companies or any of their respective Representatives with respect to any Acquisition Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Tracor Inc /De), Merger Agreement (Gec Acquisition Corp)