No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.
Appears in 3 contracts
Sources: Merger Agreement (Blue World Holdings LTD), Merger Agreement (Blue World Acquisition Corp), Merger Agreement (Blue World Holdings LTD)
No Solicitation. From the date hereof (a) Except as expressly permitted by this Section 6.02, and subject to Section 6.03(b) and Section 6.03(c), until the Merger Closing Date or, if earlier, earlier to occur of the Effective Time or the termination of this Agreement in accordance with Article XII, SPAC pursuant to Section 8.01:
(i) the Company shall not, and shall direct any of the Sponsor cause its Subsidiaries not to, and its controlled Affiliates and instruct its and their respective officers, directors and Representatives not to, directly or indirectly (aother than with respect to Parent and Merger Sub in accordance with this Section 6.02), (A) solicit, initiate, knowingly facilitate or pursue knowingly encourage (including by way of supplying non-public information) any inquiryAcquisition Proposal or any inquiries, indication of interestproposals or offers that constitute, proposal or offer relating that could reasonably be expected to lead to, an SPAC Acquisition Proposal, (bB) engage in, continue or otherwise participate in or continue any discussions or negotiations with any third-party Third Party regarding an Acquisition Proposal or with respect toto any proposals or inquiries from a Third Party relating to the making of an Acquisition Proposal (other than only informing such Persons of the provisions contained in this Section 6.02), or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, Third Party information or provide to any third-party Third Party access to the businesses, properties, assets or personnel of SPACthe Company or any of its Subsidiaries, in each case case, relating in any way to, for the purpose of encouraging or facilitating facilitating, or that could reasonably be expected to lead to, an SPAC Acquisition Proposal or Proposal, (cC) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, Contract, commitment, arrangement, understanding or agreement in principle, or any principle (other agreement than an Acceptable Confidentiality Agreement) with respect to an SPAC Acquisition Proposal or enter into any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other definitive agreement requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement, (D) approve, endorse or recommend any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (E) take any action to exempt any Person (other than Parent and its Affiliates) from restrictions on “business combinations” set forth in Section 203 of the DGCL or any other “moratorium,” “control share,” “fair price,” “takeover” or “interested stockholder” Applicable Law, or (dF) grant resolve, propose or agree to do any waiverof the foregoing; and
(ii) the Company shall, amendment and shall cause its Subsidiaries and instruct its and their respective Representatives to immediately cease and terminate any existing discussions or release under negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal (including terminating access to any electronic data room), and promptly (within two Business Days after the date hereof), the Company shall request that all non-public information previously provided by or on behalf of the Company or any of its Subsidiaries to any such Third Party be promptly returned or destroyed in accordance with the applicable Acceptable Confidentiality Agreement with such Third Party.
(b) Notwithstanding anything to the contrary contained herein, if, at any time prior to obtaining the Stockholder Approval, the Company receives an Acquisition Proposal from a Third Party that did not result from a material breach of this Section 6.02, (i) the Company and its Representatives may contact such Third Party making the Acquisition Proposal solely to clarify the terms and conditions thereof or to request that any Acquisition Proposal made orally be made in writing and (ii) if the Company Board or any committee thereof determines, in good faith after consultation with a Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal, then the Company and its Representatives may (A) furnish information and data with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel of the Company and its Subsidiaries and (B) enter into, maintain and participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or knowingly facilitate, any such discussions or negotiations; provided, however, that the Company (1) shall not, shall cause its Subsidiaries not to and shall direct its or their Representatives not to, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement or confidentiality agreement in place on the date hereof and (2) will promptly (and in any event within two Business Days) provide to Parent any material non-public information or otherwise knowingly facilitate other data or information concerning the Company or its Subsidiaries or access provided to such Third Party, in each case, which was not previously provided to Parent.
(c) The Company shall as promptly as practicable (and in any such inquiriesevent within two Business Days) notify Parent of the Company’s receipt, proposals, discussions, on or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shallof any Acquisition Proposal, which notification shall include a copy of the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition Proposal) and the identity of the Third Party making such Acquisition Proposal; provided, that if the Company is specifically prohibited from disclosing the identity of any Person making an Acquisition Proposal, the Company may redact that identity and any other identifying information but shall otherwise provide all such information relating to the Acquisition Proposal (except to the extent providing such information would violate a confidentiality agreement in effect between the Company and a Third Party as of the date hereof). The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developments, regarding any such Acquisition Proposal, and shall direct the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of any agreements (draft or final) or other material documentation relating thereto that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within two Business Days after receipt thereof. For the avoidance of doubt, all information provided to Parent or its Representatives pursuant to this Section 6.02 will be subject to the terms of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalConfidentiality Agreement.
Appears in 3 contracts
Sources: Merger Agreement (ATN International, Inc.), Merger Agreement (Alaska Communications Systems Group Inc), Merger Agreement (Alaska Communications Systems Group Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC (a) The Company shall not, and shall direct not authorize, permit or cause any of its Subsidiaries or any of the Sponsor officers and directors of it or its Subsidiaries to, and shall not authorize, permit or direct its and its controlled Affiliates Subsidiaries' employees, agents and representatives (including the Financial Advisor or any investment banker, attorney or accountant retained by it or any of its and their respective officers, directors and Representatives not Subsidiaries) to, directly or indirectly indirectly, (i) initiate, solicit, or otherwise encourage any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, tender offer, consolidation or similar transaction involving, or any purchase of, 15% or more of the assets or any equity securities of the Company or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as, an "Acquisition Proposal") or (ii) -------------------- initiate or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement or consummate an Acquisition Proposal.
(b) Notwithstanding clause (a) solicitabove, initiatenothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (ii): (x) providing information in response to a request therefor by a person or entity who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the person or entity so requesting such information an executed confidentiality agreement on terms substantially equivalent to those contained in the Confidentiality Agreement; (y) engaging in any negotiations or discussions with any person or entity who has made an unsolicited bona fide written Acquisition Proposal; or (z) recommending such an Acquisition Proposal to the stockholders of the Company, if, and only to the extent that, (i) in each such case referred to in clause (x), (y) or (z) above, the Board of Directors of the Company determines in good faith after consultation with outside legal counsel and the Financial Advisor that such action is necessary in order for its members to comply with their fiduciary duties under applicable law (the parties hereto acknowledge and agree that, so long as Section 8.11(a) has been complied with in all respects, any such action described in clauses (x), (y) or (z) above shall be permitted to be taken regardless of whether it would be necessary under applicable law, if it is taken only with respect to a Superior Proposal) and (ii) in each case referred to in clause (x), (y) or (z) above, the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel and the Financial Advisor) that, if accepted, such Acquisition Proposal is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person or entity making the proposal, and would provide for a higher per share value to the stockholders of the Company, and is fully financed (or, based on a good faith determination of the Board of Directors of the Company, is readily financeable) (any such Acquisition Proposal meeting the foregoing conditions being referred to herein as a "Superior Proposal"). The ----------------- Company shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. 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 8.11(a) of the obligations undertaken in this --------------- paragraph and in the Confidentiality Agreement. The Company also shall promptly request each person or entity that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return all confidential information heretofore furnished to such person or entity by or on behalf of it or any of its Subsidiaries.
(c) The Company shall notify Purchaser immediately if any Acquisition Proposal or inquiries regarding a potential Acquisition Proposal are received by, any information with respect to an Acquisition Proposal or a potential Acquisition Proposal is requested from, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal or a potential Acquisition Proposal are sought to be initiated or continued with, it or any of its representatives indicating, in connection with such notice, the name of the person or entity involved and the material terms and conditions of any such Acquisition Proposal, or provide to any third-party access to and thereafter shall keep Purchaser informed, on a current basis, of the businesses, properties, assets or personnel status and terms of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, inquiries or Acquisition Proposals and the status of any such negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposaldiscussions.
Appears in 3 contracts
Sources: Merger Agreement (Avery Dennison Corporation), Merger Agreement (Quad-C Inc), Merger Agreement (Stimsonite Corp)
No Solicitation. From (a) Except as permitted by this Section 4.6, the Company agrees that from the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XIIuntil the earlier of (i) the date on which this Agreement is terminated pursuant to the terms hereof and (ii) the Closing Date, SPAC the Company shall not, and shall direct any none of the Sponsor and its controlled Affiliates and its and their respective officers, directors directors, agents or Affiliates shall: (A) enter into any written or oral agreement or understanding with any Person (other than Buyer and Representatives not toits Affiliates) regarding an Acquisition Transaction; (B) negotiate, directly initiate or indirectly (a) solicit, initiateor knowingly encourage or facilitate the negotiation, initiation or pursue submission of, any inquiry, indication expression of interest, inquiry, proposal or offer from any Person (other than Buyer and its Affiliates), or enter into any negotiations with any Person (other than Buyer and its Affiliates), relating to or involving, directly or indirectly, an SPAC Acquisition ProposalTransaction; or (C) provide any Person (other than Buyer and its Affiliates) confidential information in connection with a due diligence review conducted by such Person with respect to an Acquisition Transaction. The Company and its agents, (b) participate in or continue any representatives and Affiliates have previously ceased and terminated all existing activities, discussions or negotiations with any third-party Person (other than Buyer and its Affiliates) conducted heretofore with respect to, or furnish or make available, any information concerning SPAC to any third party relating Acquisition Transaction. The Company has requested the prompt return or written acknowledgement of destruction of all confidential information previously furnished to such Persons or their representatives in connection with any Acquisition Transaction.
(b) The Company agrees that it will notify Buyer promptly (and in any event within twenty-four (24) hours after the Company’s receipt) following receipt of an SPAC Acquisition Proposal by the Company, and the Company shall (i) provide Buyer with written notice of such Acquisition Proposal including the identity of the Person or group making such Acquisition Proposal and (ii) provide to Buyer an unredacted copy of any such Acquisition Proposal made in writing (including any financing commitments or other agreements related thereto) (or if such Acquisition Proposal is not in writing, a written description of the terms and conditions thereof) and unredacted copies of all other draft agreements and material written documents and correspondence exchanged between the Company or any of its Affiliates or its or their representatives, on the one hand, and the Person or group or its representatives making such Acquisition Proposal, or provide to any third-party access to on the businesses, properties, assets or personnel of SPACother hand, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement connection with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after such notification, the date hereofCompany shall keep Buyer fully informed on a reasonably prompt basis of any material developments, SPAC shalldiscussions or negotiations regarding, or changes to the material terms and conditions of, any such Acquisition Proposal, including providing to Buyer promptly, and in no event later than twenty-four (24) hours after receipt thereof, unredacted copies of any additional proposals, counterproposals, draft agreements and material written documents and correspondence exchanged between the Company or any of its Affiliates or its or their representatives, on the one hand, and the Person or group or its representatives making such Acquisition Proposal, on the other hand, in connection with such Acquisition Proposal.
(c) Notwithstanding anything to the contrary set forth in this Section 4.6 or otherwise contained in this Agreement, if at any time prior to the receipt of the Requisite Stockholder Approval, (i) the Company or any of its Affiliates or representatives has received a bona fide Acquisition Proposal from any Person that did not result from a breach of this Section 4.6, and (ii) the Company Board determines in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and, after consultation with the Company’s outside legal counsel, that the failure to take such action described in clause (A) or (B) below would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal; provided that (x) the Company shall direct promptly, and in no event later than twenty-four (24) hours, provide to Buyer any non-public information concerning the Company that is provided to any such Person and which was not previously provided to Buyer and (y) the Company shall have entered into an Acceptable Confidentiality Agreement with such Person (provided that such Acceptable Confidentiality Agreement does not prohibit the Company from providing any information to Buyer in accordance with this Section 4.6 or otherwise prohibit the Company from complying with its obligations under this Agreement), and (B) engage in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal. Prior to the Company first taking any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, actions described in clauses (A) or (B) of the immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) preceding sentence with respect to a SPAC an Acquisition Proposal, the Company shall provide written notice to Buyer of the determination of the Company Board made pursuant to clause (ii) of the immediately preceding sentence.
Appears in 3 contracts
Sources: Merger Agreement (Majesco), Merger Agreement (Majesco), Merger Agreement (InsPro Technologies Corp)
No Solicitation. From (a) Prior to the date hereof until Effective Time of the Merger, Cornerstone agrees, for itself and in its capacity as the sole general partner of the Cornerstone Partnership, that:
(i) none of it, Cornerstone Partnership, any Cornerstone Subsidiary or the Cornerstone Non-controlled Subsidiary shall invite, initiate, solicit or encourage, directly or indirectly, any inquiries, proposals, discussions or negotiations or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, tender offer, exchange offer, transaction resulting in the issuance of securities representing 10% or more of the outstanding equity securities of Cornerstone or Cornerstone Partnership, consolidation, business combination, recapitalization, liquidation, dissolution, share exchange, business combination, sale, lease, exchange, mortgage, pledge, transfer or other disposition of 10% or more of the assets or equity securities (including, without limitation, partnership interests and units) of Cornerstone or Cornerstone Partnership, other than the Mergers (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"), or engage in any discussions or negotiations with or provide any confidential or non-public information or data to, any person relating to, or that may reasonably be expected to lead to, an Acquisition Proposal, or enter into any letter of intent, agreement in principle or agreement relating to an Acquisition Proposal, or propose publicly to agree to do any of the foregoing, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal;
(ii) none of it, Cornerstone Partnership, any Cornerstone Subsidiary or the Cornerstone Non-controlled Subsidiary will permit any officer, director, employee, affiliate, agent, investment banker, financial advisor, attorney, accountant, broker, finder, consultant or other agent or representative of Cornerstone to engage in any of the activities described in Section 4.3(a);
(iii) it, Cornerstone Partnership and the Cornerstone Subsidiaries and Cornerstone Non-controlled Subsidiary will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform the individuals or entities referred to in Section 4.3(b) of the obligations undertaken in this Section 4.3; and
(iv) it will notify EOP promptly (but in any event within 24 hours) if Cornerstone, Cornerstone Partnership, any Cornerstone Subsidiary, the Cornerstone Non-controlled Subsidiary or any individual or entity referred to in Section 4.3(b) receives any such inquiries or proposals, or any requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with it, and include in such notice the identity of the Person making such inquiry, proposal or request, the material terms of such inquiry, proposal or request and, if in writing, shall promptly deliver to EOP a copy of such inquiry, proposal or request along with all other related documentation and correspondence;
(b) Notwithstanding Section 4.3(a), the Board of Directors of Cornerstone (including with respect to Cornerstone's capacity as the sole general partner of Cornerstone Partnership) shall not be prohibited from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide written Acquisition Proposal, if, and only to the extent that (i) a majority of the Board of Directors of Cornerstone determines in good faith, after consultation with its outside counsel, that such action is required for the Board of Directors of Cornerstone to comply with its fiduciary duties to stockholders imposed by applicable law, (ii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Cornerstone provides written notice to EOP to the effect that it is furnishing information to, or entering into discussions with such person or entity and (iii) Cornerstone enters into a confidentiality agreement with such Person on terms in the aggregate not more favorable to such Person than the terms of the Confidentiality Agreement.
(c) Notwithstanding anything to the contrary set forth in Section 4.3(a) or 4.3(b), in the event that an Acquisition Proposal constitutes a Superior Acquisition Proposal (as defined herein), nothing contained in this Section 4.3 shall prohibit the Board of Directors of Cornerstone from withdrawing, modifying, amending or qualifying its recommendation of this Agreement and the Merger Closing Date oras required under Section 5.1(d) hereof and recommending such Superior Acquisition Proposal to its stockholders: (i) if but only if, if earlierCornerstone: (A) complies fully with this Section 4.3 and (B) provides EOP with at least three (3) business days' prior written notice of its intent to withdraw, modify, amend or qualify its recommendation of this Merger Agreement and the termination Merger, (ii) if, in the event that during such three (3) business days EOP makes a counter proposal to such Superior Acquisition Proposal (any such counter proposal being referred to in this Agreement as the "EOP Counter Proposal"), Cornerstone's Board of Directors in good faith, taking into account the advice of its outside financial advisors of nationally recognized reputation, determines (A) that the EOP Counter Proposal is not at least as favorable to Cornerstone's stockholders as the Superior Acquisition Proposal, from a financial point of view, and (B) the EOP Counter Proposal is not at least as favorable generally to Cornerstone's stockholders (taking into account all financial and strategic considerations and other relevant factors, including relevant legal, financial, regulatory and other aspects of such proposals, and the conditions, prospects and time required for completion of such proposal), and (iii) Cornerstone shall have terminated this Agreement in accordance with Article XIISection 7.1(h).
(d) For all purposes of this Agreement, SPAC shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to"Superior Acquisition Proposal" means a bona fide written proposal made by a third party to acquire, directly or indirectly indirectly, Cornerstone and/or Cornerstone Partnership pursuant to a tender or exchange offer, merger, share exchange, consolidation or sale of all or substantially all of the assets of Cornerstone, Cornerstone Partnership, and the Cornerstone Subsidiaries or otherwise (ai) solicit, initiate, or pursue any inquiry, indication on terms which a majority of interest, proposal or offer relating to an SPAC Acquisition Proposalthe Board of Directors of Cornerstone determines in good faith, (bA) participate taking into account the advice of Cornerstone's financial advisors of nationally recognized reputation, are superior, from a financial point of view, to Cornerstone's stockholders to those provided for in or continue any discussions or negotiations with any third-party with respect tothe Merger and (B) to be more favorable generally to Cornerstone's stockholders (taking into account all financial and strategic considerations and other relevant factors, or furnish or make availableincluding relevant legal, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalfinancial, or provide to any third-party access regulatory and other aspects of such proposals, and the conditions, prospects and time required for completion of such proposal), (ii) for which financing, to the businessesextent required, properties, assets or personnel is then fully committed and capable of SPAC, being obtained and (iii) which the Board of Directors of Cornerstone determines in each case for the purpose good faith is reasonably capable of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalbeing consummated.
Appears in 3 contracts
Sources: Merger Agreement (Eop Operating LTD Partnership), Merger Agreement (Cornerstone Properties Inc), Merger Agreement (Equity Office Properties Trust)
No Solicitation. From (a) The Company will immediately cease any existing discussions or negotiations with any third parties conducted prior to the date hereof until with respect to any Acquisition Proposal (as defined below). The Company shall not directly or indirectly, through any officer, director, employee, representative, agent or affiliates, including any investment banker, attorney, or accountant (collectively, "Representatives") retained by the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct --------------- Company or any of the Sponsor and its controlled Affiliates and its and their respective officersSubsidiaries or affiliates, directors and Representatives not to, directly or indirectly (ai) solicit, initiate, encourage or pursue otherwise facilitate (including by way of furnishing information) any inquiryinquiries or proposals that constitute, indication of interestor could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets, sale of 15% or more of shares of capital stock (including, without limitation, by way of a tender offer) or similar transactions involving the Company or any of its subsidiaries, other than the transactions contemplated by this Agreement or the Stockholders Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition ----------- Proposal"), or (ii) engage in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal.
(b) Neither the Board nor any committee thereof shall (i) subject to Section 6.9(d), withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Acquisition Sub, the approval or recommendation by the Board or such committee of the Offer, the Agreement; (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal; or (iii) cause or permit the Company or any of its subsidiaries to enter into any agreement, including an agreement in principle or letter of intent relating to an SPAC Acquisition Proposal, Proposal (ban "Acquisition Agreement"). ---------------------
(c) participate The Company shall notify Parent immediately (and no later than 24 hours) after receipt by the Company of any Acquisition Proposal or any request for non-public information in connection with an Acquisition Proposal or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party for access to the businesses, properties, assets books or personnel records of SPACthe Company by any person or entity that informs the Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in each case writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) Nothing contained in this Section 6.9 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any legally required disclosure to the stockholders of the Company. Notwithstanding anything else to the contrary, neither the Company nor the Board shall take any action that would (x) prevent, impede or delay the Offer, the Stockholder Meeting or the ability of the stockholders to hold a meeting to vote on the Merger or adopt this Agreement, (y) prevent, impede or delay (i) the ability of the stockholders of the Company (A) to tender or sell their Shares in the Offer and (B) to approve and adopt this Agreement, the Merger and the other transactions contemplated hereby, or (ii) the ability of the Company, Parent or Acquisition Sub from effecting the Offer or, after the stockholders of the Company have voted in favor of the Merger and adopted the Merger Agreement, from effecting the Merger in accordance with Delaware Law or (z) result in the Board not having taken all Board action required to satisfy all applicable requirements of Delaware Law in connection with this Agreement, the Merger and the other transactions contemplated hereby. Notwithstanding anything to the contrary, the Company will duly call, give notice and hold the Stockholders Meeting, if required by the Delaware Law, for the purpose of encouraging considering and taking action upon this Agreement and the Merger whether or facilitating an SPAC Acquisition Proposal or (c) enter into not the Board has determined at any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and time after the date hereof, SPAC shall, and shall direct hereof it is no longer advisable for the stockholders of the Company to adopt this Agreement. It is understood that any violation of the restrictions set forth in this Section 6.9 by any Representative of the Company or any of its subsidiaries, whether or not such person is purporting to act on behalf of the Sponsors and its controlled Affiliates and its and their respective officersCompany or otherwise, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than shall be deemed to be a breach of this Section 6.9 by the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalCompany.
Appears in 3 contracts
Sources: Merger Agreement (Reltec Corp), Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall (a) Parent will not, and shall direct will cause the Parent Subsidiaries and each officer, director, employee, agent or representative (including any financial or legal advisor or other retained representative) of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives Parent or any Parent Subsidiaries not to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or facilitate (including by way of furnishing information) or take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer or pursue exchange offer) or similar transactions involving Parent or any inquiryof the Parent Subsidiaries that, indication if consummated, would constitute an Alternative Transaction (as defined in paragraph (c) below) (any of interest, proposal the foregoing inquiries or offer relating proposals being referred to an SPAC herein as a "Parent Acquisition Proposal"), (bii) participate in or continue any discussions or negotiations with any third-party with respect toregarding, or furnish or make available, to any Person any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalin connection with, or provide to otherwise cooperate in any third-party access to the businessesway with any Person in connection with, propertiesan Alternative Transaction, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (ciii) enter into any binding understandingagreement regarding any Alternative Transaction.
(b) The Company will not, binding arrangementand will cause the Company Subsidiaries and each officer, acquisition agreementdirector, merger agreement employee, agent or representative (including any financial or legal advisor or other retained representative) of the Company or any Company Subsidiaries not to, directly or indirectly, (i) solicit, initiate or facilitate (including by way of furnishing information) or take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a 50 tender offer or exchange offer) or similar definitive agreementtransactions involving the Company or any of the Company Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as a "Company Acquisition Proposal" and, with a Parent Acquisition Proposal, an "Acquisition Proposal"), (ii) participate in any discussions or negotiations regarding, or furnish to any letter Person any information in connection with, or otherwise cooperate in any way with any Person in connection with, an Alternative Transaction, or (iii) enter into any agreement regarding any Alternative Transaction.
(c) As used in this Agreement, "Alternative Transaction" means, with respect to the Company or Parent, as the case may be (for this purpose, the "Target Party"), any of intent(i) a transaction pursuant to which any third Person (or group of Persons) other than the other party to this Agreement (the "Non-Target Party") or its affiliates, memorandum directly or indirectly, acquires or would acquire more than 20% of understanding the outstanding shares of common stock of the Target Party or agreement in principleof the outstanding voting power of the Target Party, whether from the Target Party or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, consolidation, business combination, recapitalization or any other agreement with respect to an SPAC Acquisition Proposal, or transaction involving the Target Party (dother than the Merger) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort of its Subsidiaries pursuant to which any third Person or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any group of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group CompaniesNon-Target Party or its affiliates) party thereto, or its stockholders, owns or would own more than 20% of the outstanding shares of common stock or the outstanding voting power of the Target Party or, if applicable, the Shareholders parent entity resulting from any such transaction immediately upon consummation thereof, or (iii) any transaction pursuant to which any third Person (or group of Persons) other than the Non-Target Party or its affiliates acquires or would acquire control of assets (including for this purpose the outstanding equity securities of the Subsidiaries of the Target Party and their Representativessecurities of the entity surviving any merger or business combination involving any of the Subsidiaries of the Target Party) of the Target Party or any of its Subsidiaries representing more than 20% of the fair market value of all the assets of the Target Party and its Subsidiaries, taken as a whole, immediately prior to such transaction.
(d) The Target Party will notify the Non-Target Party promptly (but in no event later than 48 hours) after receipt of any Acquisition Proposal, or any material modification of or material amendment to any Acquisition Proposal, or any request for non-public information relating to the Target Party or any of its Subsidiaries or for access to the properties, books or records of the Target Party or any of its Subsidiaries by any Person that informs the Board of Directors of the Target Party (the "Target Board") or any of its Subsidiaries that it is considering making, or has made, an Acquisition Proposal. Such notice to the Non-Target Party will be made orally and in writing and will 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 properties, books or records of the Target Party or any of its Subsidiaries, and the material terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal. The Target Party will (i) keep the Non-Target Party informed, on a current basis (but in no event later than 48 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 and (ii) provide to the Non-Target Party as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Target Party from any third party in connection with any Acquisition Proposal or sent or provided by the Target Party to any third party in connection with any Acquisition Proposal.
(e) Notwithstanding anything to the contrary in this Section 6.10, at any time prior to obtaining the Parent Stockholder Approval or the Company Stockholder Approval, as applicable, the Target Party may furnish or cause to be furnished information to, and enter or cause to be entered into discussions with, a Person who has made an unsolicited bona fide written proposal or offer regarding an Acquisition Proposal which did not result from a breach of Section 6.10(a) or 6.10(b), as applicable, if the Target Board has (i) determined in good faith (after consultation with its outside legal counsel and financial advisor or advisors) that such proposal or offer constitutes or is reasonably likely to lead to a Superior Proposal and, taking into account any revisions to the terms of the Merger or this Agreement proposed by the Non-Target Party after being notified pursuant to Section 6.10(g), that doing so is necessary for the Target Board to comply with its fiduciary duties to the Target Party's stockholders under applicable law, (ii) provided prior or contemporaneous notice to the Non-Target Party of its intent to furnish information to or enter into discussions with such Person, (iii) obtained from such Person an executed confidentiality agreement containing terms with respect to a SPAC Acquisition Proposal.confidentiality that are determined by the Target Party to be substantially similar to and not less favorable to the Target Party in the aggregate than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements will not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Target Party from satisfying its obligations under this Agreement), and (iv) the Target Party complies with all of its obligations under Sections 6.10(a) or 6.10(b), as applicable, and Sections 6.3, 6.10(d) and 6.10
Appears in 3 contracts
Sources: Merger Agreement (R H Donnelley Corp), Merger Agreement (Dex Media West LLC), Merger Agreement (Dex Media Inc)
No Solicitation. (a) From the date hereof of this Agreement until the Merger Closing Date or, if earlier, earlier of the Effective Time or the termination of this Agreement in accordance with Article XIIAgreement, SPAC the Company shall not, and shall direct not authorize or permit any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not directors, employees, financial advisers, legal counsel, representatives, agents, subsidiaries, or affiliates to, directly or indirectly indirectly:
(ai) solicit, seek, initiate, or pursue encourage any inquiryinquiries or proposals that constitute, indication of interestor would be reasonably likely to lead to, a proposal or offer relating to for a merger, consolidation, amalgamation, arrangement, or other business combination involving the Company or any of its subsidiaries, a sale of substantial assets of the Company and its subsidiaries, taken as whole (other than the sale or other disposition of inventory or obsolete equipment in the ordinary course of business consistent with past practice), a sale of shares of capital stock of the Company or any of its subsidiaries (including by way of a tender offer or takeover bid), or any similar transaction involving the Company or any of its subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being an SPAC “Acquisition Proposal, ”);
(bii) participate engage in or continue any discussions or negotiations with any thirdperson or group other than Parent or its affiliates (a “Third Party”) concerning any Acquisition Proposal, or provide any non-party public information, or afford access to the properties, books, records, or personnel of the Company or any of its subsidiaries, to any Third Party that is considering making, or has made, any Acquisition Proposal;
(iii) enter into any letter of intent, agreement in principle, or other agreement, arrangement, or understanding with respect to an Acquisition Proposal; or
(iv) otherwise agree to or recommend any Acquisition Proposal.
(b) Notwithstanding anything to the contrary in Section 5.3(a), nothing contained in Section 5.3(a) prevents the Company from:
(i) before obtaining the adoption and approval of this Agreement and the Merger by the Company stockholders as contemplated under Section 5.2(a), furnishing non-public information or affording access to the properties, books, records, or personnel of the Company or any of its subsidiaries to, or entering into discussions or negotiations with, any Third Party in connection with an Acquisition Proposal if and only to the extent that:
(A) the Acquisition Proposal was made after the date of this Agreement and was not solicited, sought, encouraged, or initiated in violation of this Agreement;
(B) the Company Board, in the exercise of its fiduciary duties, determines in good faith (after consultation with the Company’s financial adviser and outside legal counsel) that the Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and
(C) before furnishing such non-public information, affording such access, or entering into such discussions or negotiations, the Company receives from the Third Party an executed confidentiality agreement with terms no less favorable to the Company in all material respects than those contained in the letter agreement regarding confidentiality dated March 13, 2008 from the Company to Parent (the “Confidentiality Agreement”) and the Company contemporaneously furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent); or
(ii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal.
(c) The Company shall, and shall cause its officers, directors, employees, financial advisers, legal counsel, representatives, agents, subsidiaries, and affiliates to, immediately cease and cause to be terminated immediately all existing activities, discussions, and negotiations with any Third Parties conducted heretofore with respect to, or furnish or make availablethat would reasonably be expected to lead to, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any thirdThird-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or Party Transaction.
(d) grant The Company will not release any waiverThird Party from, amendment or release under waive any provision of, any confidentiality or standstill agreement or otherwise knowingly facilitate any to which it is a party, unless the Company Board determines in good faith (after consultation with the Company’s financial adviser and outside legal counsel) that such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person action is required in order for the Company Board to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any comply with its fiduciary duties under Delaware law.
(e) For purposes of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.this Agreement:
Appears in 3 contracts
Sources: Merger Agreement (Hostopia.com Inc.), Merger Agreement (Deluxe Corp), Merger Agreement (Hostopia.com Inc.)
No Solicitation. (a) From the date hereof until the Merger Closing Date or, if earlier, earlier of the Effective Time and the termination of this Agreement Agreement, none of Fisher or Thermo Electron, their respective Subsidiaries or any office▇, ▇▇▇ector, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) ("Representatives") of Fisher or Thermo Electron or any of their respective Subsidiaries shal▇ ▇▇▇▇ctly or indirectly (i) solicit, initiate or encourage or knowingly facilitate (including by way of furnishing information or entering into any agreements, arrangements or understandings) or take any other action designed to facilitate any inquiries or 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 Fisher or Thermo Electron or any of their respective Subsidiaries that, ▇▇ ▇onsummated, would constitute an Alternative Transaction (as defined in accordance with Article XII, SPAC shall not, and shall direct Section 8.3(b)) (any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly foregoing inquiries or indirectly (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating proposals being referred to herein as an SPAC Acquisition "Alternative Transaction Proposal"), (bii) participate in or continue any discussions or negotiations regarding an Alternative Transaction or (iii) enter into any agreement regarding any Alternative Transaction. Notwithstanding the foregoing, the Board of Directors of Fisher and Thermo Electron, respectively, shall be permitted, prior to ▇▇▇ ▇eceipt of the Fisher Stockholder Approval and Thermo Electron Stockholder Approval, ▇▇▇▇▇▇tively, and subject to compliance with any third-party the other terms of this Agreement, including this Section 4.2, and to first entering into a confidentiality agreement with the person proposing such Alternative Transaction Proposal on terms substantially similar to, and no less favorable to Fisher or Thermo Electron, respectively, than those contained in the C▇▇▇▇▇▇ntiality Agreement, dated as of April 13, 2006, as amended as of May 7, 2006, between Fisher and Thermo Electron (the "CDA"), to (x) furnish information wit▇ ▇▇▇▇ect to Fisher or Thermo Electron and their respective Subsidiaries, as the ca▇▇ ▇▇▇ be, to the Person making such bona fide written Alternative Transaction Proposal (and its Representatives) and (y) participate in discussions and negotiations with respect toto such bona fide written Alternative Transaction Proposal received by Fisher or Thermo Electron, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPACas applicable, in each case for if the purpose Board of encouraging ▇▇▇▇▇tors of Fisher or facilitating an SPAC Acquisition Thermo Electron, as the case may be, determines in good fait▇ (▇▇▇er consultation with outside legal counsel) that the failure to do so would, or would reasonably be likely to, cause it to violate its fiduciary duties.
(b) From the date hereof until the earlier of the Effective Time and the termination of this Agreement, Fisher shall notify Thermo Electron and Thermo Electron shall notify F▇▇▇▇▇, as the case may be, promptly (but in no event later than 24 ho▇▇▇) ▇fter receipt of any Alternative Transaction Proposal, or any material modification of or material amendment to any Alternative Transaction Proposal or any request for nonpublic information relating to Fisher or Thermo Electron, respectively, or any of their respective Su▇▇▇▇▇▇ries relating to any Alternative Transaction Proposal. Such notice to Fisher or Thermo Electron, as the case may be, shall be made orally an▇ ▇▇ ▇riting, and shall indicate the identity of the Person making the Alternative Transaction Proposal or such request and the material terms of any such Alternative Transaction Proposal or any material modification or material amendment to an Alternative Transaction Proposal. From the date hereof until the earlier of the Effective Time and the termination of this Agreement, Fisher shall keep Thermo Electron and Thermo Electron shall keep Fishe▇ ▇▇▇▇onably informed on a current basis of any material changes ▇▇ ▇▇▇ status and any material changes or modifications in the terms of any such Alternative Transaction Proposal, indication or request. Fisher shall also promptly, and in any event within 24 hours, notify T▇▇▇▇▇ Electron, and Thermo Electron shall also promptly, and in any event within 24 hours, notify Fisher, orally and in writing, if it enters into discussions or negoti▇▇▇▇▇▇ concerning any Alternative Transaction Proposal in accordance with Section 4.2(a).
(c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement Nothing contained in this Section 4.2 shall prohibit Fisher or similar definitive agreement, Thermo Electron or any letter of intent, memorandum of understanding their respective Subsidiaries from taking ▇▇▇ ▇isclosing to their respective stockholders a position required by Rule 14e-2(a) or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or Rule 14d-9 promulgated under the Exchange Act.
(d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From Fisher and after the date hereof, SPAC shallits Subsidiaries, and shall direct any of the Sponsors Thermo Electron and its controlled Affiliates and its and their respective officersSubsidiaries, directors and Representatives to▇▇▇▇▇ctively, shall immediately cease and terminate all cause to be terminated any existing discussions and or negotiations with any Persons (other than Fisher or Thermo Electron, respectively) conducted heretofore with res▇▇▇▇ ▇o any of the Group Companiesforegoing, and shall use reasonable best efforts to cause all Persons other than Fisher or Thermo Electron who have been furnished confidential informa▇▇▇▇ ▇egarding Fisher or Thermo Electron in connection with the Shareholders solicitation of or di▇▇▇▇▇▇ons regarding an Alternative Transaction Proposal within the 12 months prior to the date hereof promptly to return or destroy such information. Fisher and Thermo Electron agree not to, and to cause their Representativesrespective ▇▇▇▇▇diaries not to, release any third party from the confidentiality and standstill provisions of any agreement to which Fisher or Thermo Electron or their respective Subsidiaries is or may b▇▇▇▇▇ a party.
(e) Fisher and Thermo Electron shall use their respective reasonable best ▇▇▇▇▇▇s to inform their respective Representatives of the restrictions described in this Section 4.2. It is understood that any violation of the restrictions set forth in this Section 4.2 by any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of Fisher or its Subsidiaries, or Thermo Electron or its Subsidiaries, re▇▇▇▇▇▇vely, at the direction or with respect the consent of Fisher or Thermo Electron, respectively, or their respective Subsidiar▇▇▇, ▇s the case may be, shall be deemed to be a SPAC Acquisition Proposalbreach of this Section 4.2 by Fisher or Thermo Electron, respectively.
Appears in 2 contracts
Sources: Merger Agreement (Fisher Scientific International Inc), Merger Agreement (Thermo Electron Corp)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination (a) The Company agrees that neither it nor any of this Agreement in accordance with Article XII, SPAC shall not, and shall direct its subsidiaries nor any of the Sponsor officers and directors of it or its controlled Affiliates subsidiaries shall, and that it shall not cause its and their respective officerssuch subsidiaries’ employees, directors agents and Representatives representatives (including any investment banker, attorney or accountant retained by it or any of its subsidiaries), not to, to directly or indirectly indirectly, (ai) solicit, initiate, solicit or pursue knowingly encourage or knowingly facilitate any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish a transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization or make availablesimilar transaction involving the Company or any Company subsidiary, or any purchase or sale of 20% or more of the consolidated assets (including stock of its subsidiaries) of the Company and its subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, its equity securities that, if consummated, would result in any person (or the stockholders of such person) beneficially owning securities representing 20% or more of the Company’s total voting power (or of the surviving parent entity in such transaction) (any such inquiry, proposal, offer or transaction, an “Acquisition Proposal”), (ii) have any discussion with or provide or cause to be provided any non-public information concerning SPAC to any third party person relating to an SPAC Acquisition Proposal, or provide engage or participate in any negotiations concerning an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (civ) enter into any binding understandingapprove, binding arrangement, acquisition agreement, merger agreement endorse or similar definitive agreementrecommend, or propose publicly to approve, endorse or recommend, or execute or enter into, any letter of intent, memorandum of understanding or option agreement, agreement in principle, merger agreement, acquisition agreement or other similar agreement or agree to do any of the foregoing related to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of this Section 5.3 by any subsidiary of the Company or representatives of the Company or any other agreement with respect of its subsidiaries shall be deemed to be a breach of this Section 5.3 by the Company.
(b) Notwithstanding anything in this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, the Company or its Board of Directors may (i) engage or participate in negotiations or discussions with, or provide or cause to be provided any information to, any person in response to an SPAC unsolicited Acquisition ProposalProposal that did not result from a material breach of clause (a) above if (A) the Company’s Board of Directors concludes in good faith, after consultation with its outside counsel and financial advisors, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (das defined below) grant and (B) prior to providing any waivernon-public information to any person in connection with an Acquisition Proposal by any such person, amendment or release under any the Company receives from such person an executed confidentiality agreement having provisions that are no less restrictive than those of the Confidentiality Agreement (it being understood that the Company may enter into a confidentiality agreement without a standstill provision or otherwise knowingly facilitate with a standstill provision less favorable to the Company if it waives or similarly modifies the standstill provision in the Confidentiality Agreement); provided that the Company shall promptly provide or make available to Parent any such inquiries, proposals, discussions, or negotiations material non-public information concerning the Company or any effort of its Subsidiaries that is provided to the person making such Alternative Proposal or attempt by any Person such person’s representatives which was not previously provided or made available to Parent or its representatives, (ii) fail to make, an SPAC withdraw, modify or qualify (or publicly propose to withdraw, modify or qualify) the Company Recommendation or approve or recommend (or publicly propose to approve or recommend) any Acquisition Proposal. From and after the date hereofProposal or letter of intent, SPAC shallagreement in principle, and shall direct acquisition agreement or similar agreement providing for any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons Acquisition Proposal (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.a
Appears in 2 contracts
Sources: Merger Agreement (Pogo Producing Co), Merger Agreement (Plains Exploration & Production Co)
No Solicitation. From The Shareholders will not take, nor will they permit Ramus, or authorize or permit any investment banker, financial advisor, attorney, accountant or other person retained by or acting for or on behalf of any Shareholder or Ramus to take, directly or indirectly, any action to solicit, encourage, receive, negotiate, assist or otherwise facilitate (including by furnishing confidential information with respect to Ramus or permitting access to the date hereof until assets and properties and books and records of Ramus), any offer or inquiry from any person concerning a proposed sale or license of Ramus' technology or a proposed sale of the Merger Closing Date or, if earlier, shares of Ramus or a merger or other business combination between Ramus and a third-party. The foregoing shall not preclude the termination sale of securities which does not result in a change of control and which otherwise complies with this Agreement Option Agreement. Unless PDTC refuses to provide financing in accordance with Article XII, SPAC shall not, and shall direct any Sections 6.4 or 6.5 of the Sponsor and its controlled Affiliates and its and their respective officersInvestment Agreement, directors and Representatives not to, directly or indirectly (a) solicit, initiate, or pursue any inquiry, indication Ramus will be permitted to negotiate a proposed license of interest, proposal or offer relating Ramus's technology to an SPAC Acquisition Proposalentity not affiliated with Ramus or its shareholders, officers or directors after *****, so long as PDTC shall approve the license. If PDTC refuses to approve the license within ten (b10) participate days of submission of the license (the "LICENSE REVIEW PERIOD") by Ramus to PDTC, PDTC will purchase ***** in ***** at a price of ***** per share, payable in cash, within ten (10) business days of the expiration of the License Review Period. If any Shareholder or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or Ramus (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intentsuch person acting for or on their behalf) receives from any person any offer, memorandum of understanding inquiry or agreement in principleinformational request referred to above, such Shareholder or any other agreement with respect to an SPAC Acquisition ProposalRamus, or (d) grant any waiveras applicable, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any will promptly advise such inquiriesperson, proposalsby written notice, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors terms of this SECTION 9 and its controlled Affiliates will promptly, orally and its in writing, advise PDTC of such offer, inquiry or request and their respective officers, directors deliver a copy thereof and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect of such notice to a SPAC Acquisition ProposalPDTC.
Appears in 2 contracts
Sources: Investment Agreement (PDT Inc /De/), Option to Purchase (PDT Inc /De/)
No Solicitation. (a) From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XIIuntil the Effective Time, SPAC the Company shall not, and shall direct not permit any of the Sponsor its Subsidiaries to, and shall use commercially reasonable best efforts to cause its and its controlled Affiliates and its and their respective Subsidiaries’ officers, directors directors, employees, consultants, representatives and Representatives other agents, including, but not limited to, investment bankers, attorneys and accountants (collectively, the “Representatives”), not to, directly or indirectly indirectly, (ai) solicit, initiate, or pursue knowingly encourage (including by way of furnishing information or assistance), or knowingly induce, or take any action to facilitate the making of, any inquiry, indication of interestoffer or proposal that constitutes, proposal or offer relating may reasonably be expected to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect lead to, or furnish or make available, the making of any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (ii) other than informing Persons of the existence of this Section 7.2, participate in any discussions or negotiations regarding any Acquisition Proposal or, in connection with any Acquisition Proposal, furnish or provide access to any Person (other than Parent and Purchaser and their Representatives) to properties, books and records or any nonpublic information or data with respect to the Company or any of its Subsidiaries, or (iii) approve or recommend, or propose to approve or recommend any Acquisition Proposal, or (iv) enter into any understanding, letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or document contemplating or otherwise relating to any Acquisition Proposal (except for any confidentiality agreement required by Section 7.2(b)), or approve or resolve to approve, or recommend or resolve to recommend, any Acquisition Proposal, or (v) take any action to make any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including, without limitation, Section 203 of the DGCL) or any restrictive provision of any applicable anti-takeover provision in the Company’s certificate of incorporation (including, without limitation, Article Eleventh and Article Fourteenth thereof) or bylaws inapplicable to any transactions contemplated by an Acquisition Proposal. Any violation of any of the foregoing restrictions set forth in this Section 7.2(a) by any of the Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company or any Subsidiary or otherwise, shall be deemed to be a breach of this Section 7.2(a) by the Company.
(b) Notwithstanding the foregoing, until the consummation of the Offer the Board shall be permitted to engage in discussions and negotiations with, or provide nonpublic information or data to, any Person in response to a bona fide written Acquisition Proposal by such Person made after the date of this Agreement and prior to the consummation of the Offer if and only if, prior to taking any of the actions set forth above: (A) none of the Company, any of its Affiliates or any of the Representatives shall have violated any of the provisions of this Section 7.2, (B) the Board determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be the Company’s Financial Advisor), (x) that such Person is reasonably capable of consummating such Acquisition Proposal taking into account the legal, financial, regulatory and other aspects of such Acquisition Proposal and (y) that such Acquisition Proposal constitutes or would reasonably be expected to constitute or result in a Superior Proposal from the Person that made the applicable Acquisition Proposal, (C) the Board determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be the Company’s Financial Advisor), that the failure to participate in such discussions or negotiations or to furnish such information would result in a reasonable likelihood of a breach of the fiduciary duties of the Board to the Company’s stockholders under applicable Law, (D) as promptly as practicable (and in no event later than 24 hours) following any determination by the Board referred to in clauses (B) or (C) above the Company gives Parent written notice of such determination and at least 24 hours prior to participating in discussions or negotiations with, or furnishing or disclosing any nonpublic information to, such Person, the Company gives Parent written notice of the Company’s intention to participate in discussions or negotiations with, or furnish or disclose nonpublic information to, such Person, (E) in each such case, the Board has received from the Person being furnished or disclosed any nonpublic information, an executed confidentiality agreement (the subject matter of which shall be limited to the protection of nonpublic information and standstill provisions) on terms no less favorable to the Company than those contained in the Confidentiality Agreement, which confidentiality agreement shall in no event provide such Person with any exclusive right to negotiate with the Company or have the effect of prohibiting the Company from satisfying its obligations under this Agreement and (F) simultaneously with or prior to furnishing or disclosing any nonpublic information to such Person, the Company furnishes such information to Parent (to the extent such information has not been previously delivered or made available by the Company to Parent).
(i) The Board shall not withdraw, modify or change, in a manner adverse to Parent or Purchaser, the Board’s recommendation of this Agreement, the Offer or the Merger (“Change in Recommendation”) unless, prior to the consummation of the Offer, and if and only if (A) none of the Company, any of its Affiliates or any of the Representatives have violated any of the provisions of this Section 7.2, (B) the Company has provided Parent with written notice that the Board intends to take such action, such notice to specify in reasonable detail the reason(s) for such proposed action, such notice to be delivered not less than three full Business Days prior to the time the action is to be taken; (C) during the three Business Day period following the delivery of the notice referred to in clause (B) above, Parent shall have the right to propose adjustments to the terms and conditions of this Agreement and the Company and its advisors shall negotiate in good faith with Parent to make adjustments to the terms and conditions of this Agreement, (D) following any such negotiations and adjustments pursuant to clause (C) above, the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be the Company’s Financial Advisor),, that failure to make such Change in Recommendation would be inconsistent with the fiduciary duties of the Board to the stockholders of the Company under applicable Law and (E) if the Change in Recommendation is being made primarily as a result of an Acquisition Proposal, such Acquisition Proposal is a Superior Proposal and the Company shall have complied with the provisions of this Section 7.2 with respect to such Acquisition Proposal. Any Change in Recommendation in accordance with all of the provisions of this Section 7.2(c)(i) shall not be deemed a breach of Section 7.2(a) hereof. The Board shall not, in connection with any such Change in Recommendation, take any action to change the approval of the Board of this Agreement or the Transactions contemplated hereby, including for purposes of any state takeover statute or other state law (including, without limitation, Section 203 of the DGCL) and the Company’s certificate of incorporation (including, without limitation, Article Eleventh and Article Fourteenth thereof) and bylaws.
(ii) The Board shall not recommend, approve, enter into or accept a Superior Proposal unless prior to the consummation of the Offer, the Company has not violated any of the provisions of this Section 7.2, and the Board determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be the Company’s Financial Advisor), that such proposal is a Superior Proposal and that the failure to terminate this Agreement to accept such Superior Proposal or to recommend such Superior Proposal to the stockholders of the Company would result in a reasonable likelihood of a breach of the fiduciary duties of the Board to the Company’s stockholders under applicable Law; provided, however, that the Company shall not have the right to take any such action or to terminate this Agreement pursuant to Section 9.4(c) hereof and any purported termination pursuant to Section 9.4(c) hereof shall be void and of no force or effect, unless prior to any such action or termination: (A) the Company has provided Parent with written notice that it intends to terminate this Agreement pursuant to Section 9.4(c) hereof and take such action with respect to a Superior Proposal, such notice to specify in reasonable detail the material terms and conditions of the Superior Proposal then determined to be more favorable and the parties thereto and be delivered not less than three full Business Days prior to the time the action is to be taken; and (B) during the three Business Day period following the delivery of the notice referred to in clause (A) above, Parent shall have the right to propose adjustments in the terms and conditions of this Agreement and the Company and its advisors shall negotiate in good faith with Parent regarding such adjustments in the terms and conditions of this Agreement, and (C) following any such negotiations and adjustments pursuant to clause (B) above, the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be the Company’s Financial Advisor), that such proposal is a Superior Proposal and that the failure to terminate this Agreement to accept such Superior Proposal or to recommend such Superior Proposal to the stockholders of the Company would result in a reasonable likelihood of a breach of the fiduciary duties of the Board to the Company’s stockholders under applicable Law. The Company agrees that any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2(c)(ii). Any Board action taken in accordance with all of the provisions of this Section 7.2(c)(ii) shall not be deemed a breach of Section 7.2(a) hereof.
(d) grant The Company shall, and shall cause its Subsidiaries and each of their respective Representatives to immediately cease and cause to be terminated any waiverand all discussions, amendment negotiations or communications with any other Persons with respect to any existing or potential Acquisition Proposal. The Company will promptly (and in any event within four Business Days of the date hereof) request each Person that has heretofore executed a confidentiality agreement on or after October 1, 2005 in connection with its consideration of an Acquisition Proposal with the Company to return or destroy all confidential information furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of the Company or any of its Subsidiaries and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of its representatives. The Company agrees not to release under any Person from, waive any provisions of, or fail to use commercially reasonable best efforts to enforce any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, standstill agreement to which the Company or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors Subsidiaries is a party, except that, if requested to do so by a Person who is a party to a confidentiality or standstill agreement with the Company that forbids such Person from submitting an Acquisition Proposal to the Company, the Company may provide a conditional waiver of such provision of the confidentiality or standstill agreement between the Company and such Person solely to the extent necessary and for the limited purpose of permitting such Person to submit a Superior Proposal directed and disclosed only to the Board and its controlled Representatives if and only if (i) none of the Company, any of its Affiliates or any of the Representatives have violated any of the provisions of this Section 7.2, (ii) such Person has submitted a written certification to the Company that such Person will if such provision is waived promptly submit a Superior Proposal with no financing or due diligence conditions or contingencies, and a copy of such certification has been delivered to Parent, (iii) the Board determines in good faith, after consultation with its outside legal counsel and their respective officersa nationally recognized financial advisor (which may be the Company’s Financial Advisor), directors that the taking of such action is reasonably likely to result in a Superior Proposal and Representatives tothat the failure to take such action would result in a reasonably likelihood of a breach of the fiduciary duties of the Board to the Company’s stockholders under applicable Law, immediately cease (iv) the Board has notified Parent of such request and terminate all discussions the identity of such Person within 24 hours of receipt and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) has notified Parent of its intention to take such action with respect to such Person not less than 24 hours in advance of the taking of such action, and (v) no other provision of such confidentiality or standstill agreement is amended, waived, or modified in any respect. In the event that a SPAC conditional waiver satisfying the requirements in the foregoing sentence is granted and such Person does not promptly (and in any event within four Business Days) thereafter submit an Acquisition Proposal that is a Superior Proposal (determined in good faith by the Board after consultation with its outside legal counsel and financial advisor) with no financing or due diligence conditions or contingencies, any such conditional waiver shall be void and of no effect.
(e) The Company shall promptly (and in any event within 24 hours) notify Parent orally and confirm in writing if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, the Company or its Representatives, in each case in connection with any Acquisition Proposal or potential Acquisition Proposal, indicating in connection with such notice, the name of such Person(s) and the material terms and conditions of such proposal or offer. The Company shall thereafter keep Parent informed, on a current basis, as to the material terms and conditions of any such proposal or offer and the status of any such discussions or negotiations.
(f) Nothing contained in this Section 7.2 shall prohibit the Company or its Board from taking and disclosing to the Company’s stockholders its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed to be a Change in Recommendation (in which case Parent shall have the right to terminate this Agreement as set forth in Section 9.3(c) and be paid the Termination Fee and Reimbursable Expenses) unless the Company Board reaffirms the Company’s recommendation of the Offer in such disclosure and provided further, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Molex Inc), Merger Agreement (Molex Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC Such Stockholder shall not, and shall direct any of the Sponsor and in its controlled Affiliates and its and their respective officers, directors and Representatives not tocapacity as --------------- such, directly or indirectly (ai) solicit, initiatefacilitate, initiate or pursue encourage any inquiry, indication inquiries or the making of interest, any proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition ProposalTransaction, (ii) enter into an agreement, arrangement or understanding with respect to any Acquisition Transaction or enter into any agreement, arrangement or understanding requiring such Stockholder to abandon, terminate or fail to consummate this Agreement or any other transaction contemplated hereby or (diii) grant any waivernegotiate, amendment or release under any confidentiality agreement explore or otherwise knowingly facilitate any such inquiries, proposals, engage in discussions, or negotiations or any effort or attempt by furnish to any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group CompaniesParent or Acquiror) any information, the Shareholders and their Representatives) with respect to any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Transaction. Such Stockholder should not, in its capacity as such, (i) withdraw or modify or propose to withdraw or modify, in a SPAC manner adverse to Parent or Acquiror, the approval or recommendation by such Stockholder of the Offer, the Merger, the Merger Agreement or this Agreement or (ii) endorse or recommend, or proposed to endorse or recommend, any Acquisition ProposalTransaction. If such Stockholder receives any inquiry or proposal regarding any Acquisition Transaction, such Stockholder shall promptly inform Acquiror of that inquiry or proposal and the details thereof. Nothing in this paragraph 5(a) shall prevent any Stockholder who is a director of the Company from taking any action, solely in his capacity as a director of the Company, that a director of the Company is permitted to take in accordance with Section 5.4 of the Merger Agreement. Additionally, nothing in this paragraph 5(a) shall prevent any Stockholder who is an officer of the Company from taking any action, solely in his or her capacity as an officer of the Company, if requested or directed to do so by the Board of Directors of the Company acting in a compliance with Section 5.4 of the Merger Agreement.
Appears in 2 contracts
Sources: Stock Voting and Non Tender Agreement (Pine Holdings Inc), Stock Voting and Non Tender Agreement (Hoffman Carl W)
No Solicitation. From (a) The Company and its Subsidiaries shall, and shall cause each of their respective Representatives to, immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal or Acquisition Transaction.
(b) At all times during the date hereof until period commencing with the Merger Closing Date or, if earlier, the termination execution and delivery of this Agreement in accordance with Article XIIand continuing until the Purchase Time, SPAC the Company shall not, shall cause its Subsidiaries not to, and shall direct not authorize or permit any of the Sponsor and its, any of its controlled Affiliates and its and Subsidiaries or any of their respective officers, directors and Representatives not to, directly or indirectly indirectly:
(ai) solicit, initiate, facilitate or pursue knowingly encourage or induce any inquiryinquiry with respect to, indication or the making, submission or announcement of, an Acquisition Proposal or an Acquisition Transaction;
(ii) subject to Section 7.6(c), furnish to any Person (other than Parent, Purchaser or any designees of interest, proposal Parent or offer Purchaser) any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other than Parent, Purchaser or any designees of Parent or Purchaser), or take any other action, in each case in a manner that is intended or would be reasonably expected to assist or facilitate any inquiries or the making of any proposal that constitutes or could lead to an SPAC Acquisition ProposalProposal or an Acquisition Transaction;
(iii) subject to Section 7.6(c), (b) participate or engage in or continue any discussions or negotiations with any third-party Person with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or an Acquisition Transaction;
(civ) approve, endorse or recommend an Acquisition Proposal or an Acquisition Transaction;
(v) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or other Contract contemplating or otherwise relating to an Acquisition Proposal or an Acquisition Transaction (other than a confidentiality agreement pursuant to and in principleaccordance with Section 7.6(c));
(vi) terminate, amend or waive any material rights under (or fail to enforce by seeking an injunction or by seeking to specifically enforce the material terms of) any confidentiality or “standstill” or other similar agreement between the Company or any of its Subsidiaries and any other Person;
(vii) (x) take any action to exempt any Person, other than Parent and Purchaser, from Section 203 of the DGCL or any other applicable anti-takeover Laws, or (y) other than as contemplated by this Agreement, redeem, amend or waive any of the Company Rights or amend, terminate or waive the Rights Agreement; or
(viii) agree with a third party to do any of the foregoing, or propose to third parties (including the Company’s stockholders) to do any of the foregoing, other than pursuant to Section 7.6(c), Section 7.7(b) or Section 9.1(h) in accordance with the terms thereof.
(c) Notwithstanding the foregoing terms of Section 7.6(b) or any other provision in this Agreement, at any time prior to the Purchase Time, the Company Board may, directly or indirectly through its Representatives, (x) engage or participate in discussions or negotiations with any Person that has made (and not withdrawn) an unsolicited Acquisition Proposal in writing after the date hereof and/or (y) furnish or make available to any Person that has made (and not withdrawn) an unsolicited Acquisition Proposal in writing after the date hereof, any non-public information relating to the Company or any of its Subsidiaries; provided, however, that the Company may take any action contemplated by the foregoing clauses (x) or (y) if and only if all of the following conditions have been satisfied prior to taking such action:
(i) the Company Board shall have determined in good faith (after consultation with its financial advisor and its outside legal counsel) that (A) such Acquisition Proposal either constitutes or is reasonably likely to lead to a Superior Proposal and (B) the failure to take such action is reasonably likely to result in a breach of its fiduciary duties to the Company’s stockholders under Delaware Law;
(ii) none of the Company, any of its Subsidiaries or any of their respective Representatives shall have breached or violated in any material respect the terms of this Section 7.6 in connection with such Acquisition Proposal or in connection with any other Acquisition Proposal made by any Person (or any Affiliate or agent thereof) making such Acquisition Proposal;
(iii) the Company shall have entered into a confidentiality agreement no less favorable in the aggregate to the Company than the Confidentiality Agreement with such Person;
(iv) the Company shall have given Parent at least forty-eight (48) hours prior written notice of (x) its intent to take any action permitted by this Section 7.6(c), (y) the identity of the Person(s) making the Acquisition Proposal forming the basis for taking the action permitted by this Section 7.6(c) and (z) all of the material terms and conditions of such Acquisition Proposal (and if such Acquisition Proposal is in written form, prior to taking any action with respect to such Person, the Company shall have given Parent a copy of such Acquisition Proposal); and
(v) prior to or contemporaneously with furnishing any non-public information to such Person, the Company shall have furnished or made available such non-public information to Parent (to the extent such information has not been previously furnished or made available by the Company to Parent).
(d) In addition to the obligations of the Company set forth in Section 7.6(c), the Company shall promptly, and in all cases within forty-eight (48) hours, advise Parent in writing of the receipt by the Company, any of its Subsidiaries or any of their respective Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an SPAC Acquisition Proposal, or (diii) grant any waiverinquiry with respect to, amendment or release under which would reasonably be expected to lead to, any confidentiality agreement Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or otherwise knowingly facilitate inquiry, and the identity of the Person or group making any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal, request or inquiry. From At all times from and after the date hereofCompany’s, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and Subsidiaries’ or any of their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group CompaniesRepresentatives’ receipt thereof, the Shareholders Company shall keep Parent reasonably informed of the status and their Representativesmaterial terms and conditions (including all amendments or proposed amendments) with respect to a SPAC of any such Acquisition Proposal, request or inquiry (including by giving Parent a copy of any materials provided by such Person if in written form).
(e) The Company shall provide Parent with at least forty-eight (48) hours prior written notice (or any shorter period of advance notice provided to members of the Company Board) of a meeting of the Company Board (or any committee thereof) at which the Company Board (or any committee thereof) is reasonably expected to consider an Acquisition Proposal or Acquisition Transaction.
Appears in 2 contracts
Sources: Merger Agreement (Ramtron International Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
No Solicitation. From (a) Except as permitted by this Section 6.04 or by the Subsidiary Transfer Agreement with respect to the Transfer Subsidiaries, from the date hereof until the Merger Closing Date Effective Time or, if earlier, the termination of this Agreement in accordance with Article XIIVIII, SPAC shall notthe Company shall, and the Company shall direct any of the Sponsor cause its Subsidiaries and its controlled Affiliates Affiliates, and its and their respective directors, officers, directors employees, advisors, consultants, accountants, investment bankers and Representatives not toother agents and representatives (collectively, directly or indirectly “Representatives”) to (ai) solicit, initiate, or pursue cease and cause to be terminated any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any existing discussions or negotiations with any third-party Person other than Parent and Merger Sub with respect to a Takeover Proposal and (ii) not, directly or indirectly: (A) initiate, solicit or knowingly encourage or facilitate (including by providing information or granting any waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or otherwise) any inquiries, discussions or offers or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal, (B) engage in, continue or furnish otherwise participate in any discussions or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition negotiations regarding a Takeover Proposal, or provide any non-public information or data to any third-party Person relating to the Company or any of its Subsidiaries, or afford to any Person access to the businessesbusiness, properties, assets or personnel of SPACthe Company or any of its Subsidiaries, in each case for the purpose of encouraging (C) approve, endorse, recommend or facilitating an SPAC Acquisition Proposal or (c) enter into any binding letter of intent, memorandum of understanding, binding arrangementagreement in principle, acquisition agreement, merger agreement or similar definitive agreementagreement (other than an Acceptable Confidentiality Agreement) relating to a Takeover Proposal (a “Company Acquisition Agreement”) or (D) resolve to propose, agree or publicly announce an intention to do any letter of intentthe foregoing.
(b) At any time following the date hereof and prior to the Offer Closing, memorandum if the Company receives a bona fide written Takeover Proposal from any Person other than Parent or Merger Sub (which Takeover Proposal does not arise out of understanding any breach of this Section 6.04), (i) the Company and its Representatives may provide information in response to a request therefor by such Person if the Company receives from such Person (or has received from such Person) an executed confidentiality agreement containing confidentiality terms that are no less favorable to the Company than those contained in principlethe Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 6.04 (an “Acceptable Confidentiality Agreement”); provided further that any information concerning the Company or its Subsidiaries provided to any such Person shall, to the extent not previously provided to Parent or Merger Sub, be concurrently provided to Parent or Merger Sub; and (ii) the Company and its Representatives may engage or participate in any discussions or negotiations with such Person if and only to the extent that prior to taking any action described in clause (i) above or this clause (ii), (x) the Company Board determines in good faith, after receiving the recommendation of the Special Committee and after consultation with outside legal counsel, including legal counsel to the Special Committee, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law, (y) based on the information then available, the Company Board determines in good faith, after receiving the recommendation of the Special Committee and after consultation with the Company Financial Advisor that such Takeover Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (z) the Company has provided prior oral and written notice to Parent and Merger Sub of the determination of the Board.
(c) Except as set forth in this Section 6.04(c), none of the Company Board, the Special Committee or any other committee of the Company Board shall (1) withdraw, amend, modify or qualify in a manner adverse to Parent or Merger Sub, or fail to make, the Company Board Recommendation (which shall include a failure to include the Company Board Recommendation in the Schedule 14D-9), (2) adopt, approve or recommend a Takeover Proposal, (3) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 or fail to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation, in either case within ten (10) Business Days after the commencement of such Takeover Proposal, (4) make any public statement inconsistent with the Company Board Recommendation or (5) resolve or publicly propose to take any of the foregoing actions (any of the foregoing in clauses (1) through (5) inclusive, a “Company Adverse Recommendation Change”) or cause or permit the Company to enter into any Company Acquisition Agreement. Notwithstanding anything to the contrary contained in this Agreement, prior to the Offer Closing, the Company Board or the Special Committee, directly or indirectly through any Representative, may if neither the Company nor its Subsidiaries, nor their respective Representatives, are in breach of this Section 6.04, (i) on account of material events or changes in circumstances arising after the date hereof and not known to the Company as of or prior to the date hereof, make a Company Adverse Recommendation Change or (ii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change and terminate this Agreement in accordance with the terms of Section 8.04(a) only if (in the case of either (i) or (ii)) the Company Board determines in good faith, after receiving the recommendation of the Special Committee and after consultation with outside legal counsel, including legal counsel to the Special Committee, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; provided that the Company shall not be permitted to terminate this Agreement in the event of a Company Adverse Recommendation Change pursuant to clause (i) above and shall not take the actions in clause (ii) above unless and until (A) the Company notifies Parent and Merger Sub in writing (a “Notice of Superior Proposal”), at least four (4) Business Days in advance of taking either such action, that the Company Board intends to take the action in clause (ii) above and that the Company Board intends to declare a Superior Proposal, which Notice of Superior Proposal shall specify the identity of the party who made such Superior Proposal and all of the material terms and conditions of such Superior Proposal and shall attach the agreements and all material related documentation providing for such Superior Proposal; (B) after providing such Notice of Superior Proposal and prior to taking such action in clause (ii) above, the Company shall negotiate in good faith with Parent and Merger Sub during such four (4) Business Days period (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement as would permit the Company Board (consistent with its fiduciary duties under applicable Law) not to take such action in clause (ii) above; and (C) the Company Board shall have considered in good faith any changes to this Agreement offered in writing by Parent and Merger Sub in a manner that would form a binding contract if accepted by the Company and shall have determined in good faith, that the Superior Proposal would nevertheless continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect and that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 6.04(c); provided that references to the four (4) Business Days period above shall be deemed to be references to a two (2) Business Day period with respect to any such amendment to a previous Superior Proposal. Not less than two (2) Business Days prior to making any Company Adverse Recommendation Change pursuant to clause (i) above, the Company shall notify Parent and Merger Sub, which notice shall state all of the underlying facts related thereto and the basis for the Company Board’s determination. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law, provided that any disclosure other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, (B) an express and unqualified rejection of any applicable Takeover Proposal, or (C) an express and unqualified reaffirmation of the Company Recommendation in favor of the Offer and the Merger shall be deemed to be a Company Adverse Recommendation Change (including for purposes of Section 8.03(a)). From the date hereof through the earlier of the Effective Time and the earlier termination of this Agreement in accordance with Article VIII, upon the written request of Parent or Merger Sub (A) following any disclosure of the kind referred to in the prior sentence (other than clauses (B) or (C) of the proviso thereof) or (B) in the event (1) a Takeover Proposal has been made publicly known or (2) any other event or circumstance has occurred that could reasonably be expected to prevent or materially delay or impair the ability of the parties to consummate the Offer, the Merger or the other transactions contemplated by this Agreement on a timely basis, the Company Board shall expressly publicly reaffirm the Company Recommendation within ten (10) Business Days following such request, and failure to do so shall be deemed to be a Company Adverse Recommendation Change.
(d) The Company shall notify Parent promptly (but in no event later than forty-eight (48) hours) following the receipt by the Company (or any of its Representatives) of any Takeover Proposal (or any inquiry or request for negotiating or discussing a Takeover Proposal) or any request for information in connection with any Takeover Proposal. In such notice, the Company shall specify the identity of the party who made such Takeover Proposal or request and all of the material terms and conditions of such Takeover Proposal and shall attach the agreement and all material related documentation providing for any such Takeover Proposal or request and shall as promptly as reasonably practicable (and in any event on a daily basis) advise Parent and Merger Sub of any material amendments to any such Takeover Proposal or request, and shall keep Parent and Merger Sub reasonably informed of the status and terms thereof. The Company shall not enter into any agreement with any such Person which would prevent the Company from complying with the provisions of this Agreement.
(e) The approval of the Company Board for purposes of causing the Takeover Statutes to be inapplicable to the transactions contemplated by this Agreement (and the Support Agreements) shall be irrevocable and unconditional while this Agreement (including any amendments hereto in accordance with the terms hereof) remains in effect and no Company Adverse Recommendation Change in and of itself shall change such approval for purposes of causing any such Law to be inapplicable to the transactions contemplated hereby (or thereby). To the extent Parent and/or the Company believes that there has been a breach by any other Person of any standstill provision to which the Company or any of its Subsidiaries is a party, the Company shall use reasonable best efforts to enforce such standstill provision to the extent permitted by applicable Law. In furtherance of this Section 6.04 and subject to (i) applicable Law and (ii) the Company Board’s determination in good faith, after receiving the recommendation of the Special Committee and after consultation with outside legal counsel, including legal counsel to the Special Committee, that any such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law, (x) the Company Board shall not grant any waiver or release under any standstill agreement with respect to an SPAC Acquisition Proposal, or any class of equity securities of the Company and (dy) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shallCompany shall enforce, and shall direct not release or permit the release of any Person from, or amend, waive, terminate or modify, and shall not permit the amendment, waiver, termination or modification of, any provision of, any confidentiality or similar agreement or provision to which the Company or any of its Subsidiaries is a party or under which the Sponsors and Company or any of its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with subsidiaries has any Persons (other than rights to the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalextent permitted by applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Bishop Infrastructure III Acquisition Company, Inc.), Merger Agreement (Westway Group, Inc.)
No Solicitation. From (a) The Company and its Subsidiaries and the date hereof until officers and directors of the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC Company and its Subsidiaries shall not, and the Company and its Subsidiaries shall direct use their respective best efforts to cause the Company’s and its Subsidiaries’ other employees and any investment banker, financial advisor, attorney, consultant, accountant or other representative of the Company or any of its Subsidiaries (collectively, the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives “Representatives”) not to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or encourage, or pursue take any inquiry, indication of interest, proposal or offer relating other action to an SPAC Acquisition facilitate any Company Takeover Proposal, (bii) participate in provide any nonpublic information or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC data to any third party person relating to an SPAC Acquisition a Company Takeover Proposal, or provide to engage in any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementnegotiations concerning a Company Takeover Proposal, or knowingly facilitate any effort or attempt to make or implement a Company Takeover Proposal, (iii) approve or recommend, or propose publicly to approve or recommend, any Company Takeover Proposal, (iv) approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, memorandum of understanding or agreement in principle, merger agreement, asset purchase or any share exchange agreement, option agreement or other similar agreement with respect (other than a confidentiality agreement to an SPAC Acquisition Proposalthe extent permitted by this Section 4.02), or (dv) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person agree to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct do any of the Sponsors and its controlled Affiliates and its and their respective officersforegoing related to any Company Takeover Proposal. The term “Company Takeover Proposal” means any inquiry, directors and Representatives proposal or offer from any person relating to, immediately cease and terminate all discussions and negotiations with any Persons or that is reasonably likely to lead to (other than the Group Companies, the Shareholders and their Representativesx) a proposal or offer with respect to a SPAC Acquisition Proposal.merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase directly or indirectly (including by way of lease, exchange, sale, mortgage, pledge, tender offer, exchange offer or otherwise, as may be applicable) of any assets (other than sales of investment securities in the ordinary course of business) of the Company or any of its Subsidiaries or any shares of Company Common Stock or other class of capital stock of, or any other equity or voting interests in, the Company or any of its Subsidiaries, (y) a breach of any of the provisions of this Agreement or any interference with the completion of the Merger or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing; provided that nothing herein shall prohibit the Company Reorganization or the Consolidation;
Appears in 2 contracts
Sources: Merger Agreement (National Health Realty Inc), Merger Agreement (National Healthcare Corp)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC (a) The Company shall not, and shall direct any of the Sponsor cause its Subsidiaries not to, and shall not authorize or permit its and its controlled Affiliates and its and their respective Subsidiaries’ directors, officers, directors employees, advisors and Representatives not investment bankers (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) to, directly or indirectly (a) indirectly, solicit, initiate, or pursue knowingly encourage the submission of any inquiryinquiries, indication or the making of interest, any proposal or offer relating offer, that constitutes a Takeover Proposal or that could reasonably be expected to an SPAC Acquisition lead to any Takeover Proposal, or, subject to Section 6.04(b), (bi) conduct, engage in, or otherwise participate in or continue any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any third-party with respect to, such discussions or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalnegotiations, or provide any non-public information or data to any third-party Person relating to the Company or any of its Subsidiaries, or afford to any Person access to the businessesbusiness, properties, assets assets, books or records or personnel of SPACthe Company or any of its Subsidiaries (except to notify such Person of the existence of the provisions of this Section 6.04), in each case for the purpose of encouraging (ii) approve or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementrecommend, or publicly propose to approve or recommend, any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Takeover Proposal, or (diii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or otherwise knowingly facilitate similar definitive agreement relating to any such inquiriesTakeover Proposal (each, proposalsa “Company Acquisition Agreement”). Except as set forth in Section 6.04(b), discussionsneither the Company Board nor any committee thereof shall withdraw, amend, modify or materially qualify in a manner adverse to Parent or Merger Sub, or negotiations fail to make the Company Board Recommendation, or recommend a Takeover Proposal, or make any effort public statement inconsistent with the Company Board Recommendation, or attempt by resolve or agree to take any Person to makeof the foregoing actions (any of the foregoing, an SPAC Acquisition Proposala “Company Adverse Recommendation Change”). From and after the date hereof, SPAC The Company shall, and shall direct cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of the Sponsors its or their Representatives to continue, any and its controlled Affiliates and its and their respective officersall existing activities, directors and Representatives todiscussions or negotiations, immediately cease and terminate all discussions and negotiations if any, with any Persons (other than third party conducted prior to the Group Companies, the Shareholders and their Representatives) date hereof with respect to any Takeover Proposal until such time, if any, as this Agreement is terminated in accordance with its terms.
(b) Notwithstanding anything to the contrary contained in this Agreement, prior to the Offer Closing, the Company Board, directly or indirectly through any Representative, may if neither the Company nor its Subsidiaries, nor their respective Representatives, are in breach of this Section 6.04, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or is reasonably expected to result in a SPAC Acquisition Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement, (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate this Agreement in accordance with the terms of Section 8.04(a), and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Notwithstanding the foregoing provisions of this Section 6.04(b), the Company Board may, at any time, so long as it is not in breach of this Section 6.04, withdraw, modify or amend the Company Board Recommendation and terminate this Agreement if the Company Board determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law, provided, however, that any disclosure other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, (B) an express rejection of any applicable Takeover Proposal, or (C) an express reaffirmation of its recommendation to its stockholders in favor of the Offer and the Merger shall be deemed to be a Company Adverse Recommendation Change; provided, that any disclosure made by the Company other than as set forth in (A) through (C) above shall not be a Company Adverse Recommendation Change if after such disclosure the Company Board expressly publicly reaffirms the Company Board Recommendation within three (3) Business Days following a request from Parent.
Appears in 2 contracts
Sources: Merger Agreement (Randstad North America, L.P.), Merger Agreement (SFN Group Inc.)
No Solicitation. From (a) Subject to Section 6.6(b), on and after the date hereof until and prior to the Merger Closing Date or, if earlierEffective Time, the termination of this Agreement in accordance with Article XIICompany agrees that:
(i) neither the Company nor any Company Subsidiary shall invite, SPAC shall notinitiate, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not tosolicit or encourage, directly or indirectly (a) solicitindirectly, initiateany inquiries, proposals, discussions or pursue negotiations or the making or implementation of any inquiry, indication of interest, proposal or offer relating (including, without limitation, any proposal or offer to the Company shareholders or holders of Company OP Units) with respect to any direct or indirect (A) merger, consolidation, business combination, reorganization, recapitalization, liquidation, dissolution or similar transaction, (B) sale, acquisition, tender offer, exchange offer (or the filing of a registration statement under the Securities Act in connection with such an SPAC exchange offer), share exchange or other transaction or series of related transactions that, if consummated, would result in the issuance of securities representing, or the sale, exchange or transfer of, 15% or more of the outstanding voting equity securities of the Company or equity interests in any Company Subsidiary (including, without limitation, partnership interests and units), or (C) sale, lease, exchange, mortgage, pledge, transfer or other disposition (“Transfer”) of any assets of the Company or any Company Subsidiary in one or a series of related transactions that, if consummated, would result in the Transfer of more than 15% of the consolidated assets of the Company (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”), (b) participate or engage in or continue any discussions or negotiations with or provide any thirdconfidential or non-party with respect public information or data to, or furnish afford access to properties, books or make availablerecords to, any information concerning SPAC Person relating to, or that may reasonably be expected to any third party relating to lead to, an SPAC Acquisition Proposal, or provide to agree to, approve or recommend any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding agreement in principle or agreement in principlerelating to an Acquisition Proposal, or propose publicly to agree to do any other agreement of the foregoing, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal;
(ii) the Company and the Company Subsidiaries shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any of the foregoing (including any Acquisition Proposal) and use their reasonable best efforts to inform each Company Representative of the obligations undertaken in this Section 6.6 and use their reasonable best efforts or, in the case of any Company Representative that constitutes a third party legal, accounting or financial advisor, their commercially reasonable efforts, to cause each such Company Representative to comply with such obligations; and
(iii) the Company shall (A) notify Parent promptly (but in any event within 24 hours), orally and in writing, if the Company, any Company Subsidiary or any Company Representative receives (1) an SPAC Acquisition Proposal or any material amendment or change in any previously received Acquisition Proposal, (2) any request for confidential or nonpublic information or data relating to, or for access to the properties, books or records of, the Company or any Company Subsidiary by any Person that has made, or to such party’s knowledge may be considering making, an Acquisition Proposal, or (d3) grant any waiveroral or written expression that any such activities, amendment discussions or release negotiations are sought to be initiated or continued with the Company, and, as applicable, include in such notice the identity of the Person making such Acquisition Proposal, indication or request and the material terms of such Acquisition Proposal, indication or request; and (B) keep Parent informed on a prompt basis of the status and material terms of (including all material changes to the status or material terms of) any such Acquisition Proposal, indication or request.
(b) Notwithstanding Section 6.6(a), prior to obtaining the Company Shareholder Approval, the Board shall not be prohibited from furnishing information to, or entering into discussions or negotiations with, any Person that makes a bona fide written Acquisition Proposal to the Board after the date hereof which was not invited, initiated, solicited or encouraged, directly or indirectly, by the Company, any Company Subsidiary or any Company Representative on or after the date hereof if, and only to the extent that, (i) the Board concludes in good faith, based upon advice of its outside legal counsel, that such action is required to discharge the Board’s duties to the Company and its shareholders under Entity Law, (ii) a majority of the Board determines in good faith, after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that such Acquisition Proposal is reasonably likely to result in a Superior Acquisition Proposal, (iii) the Company complies with all of its obligations under this Agreement, (iv) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions with such Person, and (v) the Company enters into a confidentiality agreement with such Person the material terms of which are (without regard to the terms of such Acquisition Proposal) in all material respects no less favorable to the Company, and no less restrictive to the Person making such Acquisition Proposal, than those contained in the Confidentiality Agreement but which confidentiality agreement permits disclosure to Parent of the identity of the Person making such Acquisition Proposal and the material terms of such Acquisition Proposal.
(c) If, prior to obtaining the Company Shareholder Approval, the Board or any committee thereof intends: (i) to publicly approve or recommend, or propose to publicly approve or recommend, any Superior Acquisition Proposal, or (ii) to cause the Company to enter into any agreement with respect to any Superior Acquisition Proposal (other than any confidentiality agreement as contemplated by Section 6.6(b)) (a “Competing Agreement”), then at least five Business Days prior to taking such action: (A) the Company shall provide Parent with written notice advising Parent that the Board has received a Superior Acquisition Proposal that it intends to accept, specifying the material terms and conditions of such Superior Acquisition Proposal, identifying the Person or otherwise knowingly facilitate Persons making such Superior Acquisition Proposal and, if in writing, delivering to Parent the most recent draft of such definitive Competing Agreement and a summary of the material terms of any such inquiries, proposals, discussions, or negotiations agreement to which the Company or any effort or attempt by any Person to makeCompany Subsidiary is a party that is integrated therewith, an SPAC Acquisition Proposal. From in its possession, and after (B) the date hereof, SPAC Company shall, and shall direct any of the Sponsors cause its financial and its controlled Affiliates and its and their respective officers, directors and Representatives legal advisors to, immediately cease negotiate in good faith with Parent for up to five (5) Business Days to make adjustments in the terms and terminate conditions of this Agreement (the “Adjusted Terms”). If following the completion of such five (5) Business Day period the Board, in its sole judgment, has determined in good faith, after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that the Adjusted Terms are not at least as favorable to the Company shareholders as the Superior Acquisition Proposal (taking into account all discussions financial and negotiations with strategic considerations and other relevant factors, including relevant legal, financial, regulatory and other aspects of such proposals, and the conditions, prospects and time required for completion of such proposal), then the Board or any Persons committee thereof may: (other than i) publicly approve or recommend, or propose to approve or recommend, such Superior Acquisition Proposal; (ii) make an Adverse Recommendation or (iii) cause the Group Companies, the Shareholders and their Representatives) Company to enter into a Competing Agreement with respect to a SPAC such Superior Acquisition Proposal.
(d) For all purposes of this Agreement, “Superior Acquisition Proposal” means a bona fide unsolicited written proposal made by a third party to acquire, directly or indirectly, the Company and/or the Company Subsidiaries pursuant to a tender or exchange offer, merger, share exchange, consolidation or sale of all or substantially all of the assets of the Company and the Company Subsidiaries or otherwise (i) on terms which a majority of the Board determines in good faith, (A) after consultation with the Company’s financial advisors of nationally recognized reputation, are more favorable from a financial point of view to the Company shareholders than those provided for in the Merger (taking into account all the terms and conditions of the proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation) and (B) to be more favorable generally to the Company shareholders (taking into account all financial and strategic considerations and other relevant factors, including relevant legal, financial, regulatory and other aspects of such proposals, and the conditions, prospects and time required for completion of such proposal), (ii) for which financing, to the extent required, in the reasonable judgment of the Board is capable of being obtained and (iii) which the Board determines in good faith is reasonably capable of being consummated.
Appears in 2 contracts
Sources: Merger Agreement (Health Care Reit Inc /De/), Merger Agreement (Windrose Medical Properties Trust)
No Solicitation. From (a) The Company has, and will cause its Representatives (as defined below) to have, ceased and terminated all existing discussions, negotiations and communications with any persons (other than Parent, Sub or any of their respective Subsidiaries or Representatives) with respect to any offer or proposal relating to any transaction or proposed transaction or series of related transactions, other than the transactions contemplated hereby, involving: (A) any consolidation, tender offer, business combination, merger or similar transaction involving the Company or any Company Subsidiary; (B) any recapitalization, restructuring, liquidation or dissolution of the Company or any Company Subsidiary, (C) any issuance by the Company individually or in the aggregate of over fifteen percent (15%) of its equity securities or (D) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or its Subsidiaries (including for this purpose the outstanding equity securities of the Company’s Subsidiaries) for consideration equal to fifteen percent (15%) or more of the market value of all of the outstanding Shares on the last trading day prior to the date hereof of this Agreement or fifteen percent (15%) of the consolidated total assets of the Company and the Company Subsidiaries (each of clauses (A)-(D), an “Acquisition Proposal”). Except as provided in this Section 5.2, from the date of this Agreement until the Merger Closing Date or, if earlier, the earlier of termination of this Agreement in accordance with Article XIIor the Effective Time, SPAC the Company shall not, not and shall direct any not authorize or permit its officers, directors, employees, investment bankers, attorneys, accountants or other agents or those of the Sponsor and its controlled Affiliates and its and their respective officersCompany Subsidiaries (collectively, directors and Representatives not to, “Representatives”) to directly or indirectly (ai) solicit, initiate, solicit or pursue knowingly encourage, or knowingly take any inquiryaction to facilitate the making of, indication of interest, any offer or proposal which constitutes or offer relating is reasonably likely to an SPAC lead to any Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cii) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC any Acquisition Proposal, or (diii) engage in negotiations or discussions with, or provide any non-public information or data to, any person (other than Parent or any of its affiliates or Representatives) relating to any Acquisition Proposal or, except as set forth in Section 5.2(b), grant any waiver, amendment waiver or release under any standstill or other agreement. The Company agrees that any material violations of the restrictions set forth in this Section 5.2 by any of its Representatives shall be deemed to be a material breach of this Agreement (including this Section 5.2) by the Company. Notwithstanding the foregoing, nothing contained in this Section 5.2 or any other provision hereof shall prohibit the Company or the Company Board of Directors from taking and disclosing to the Company’s shareholders its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act.
(b) Notwithstanding anything to the contrary set forth in this Agreement, prior to the Acceptance Time, the Company and its Representatives may furnish non-public information regarding the Company to any person pursuant to a confidentiality agreement or otherwise knowingly facilitate with terms no less favorable, in the aggregate, to the Company than those contained in the Confidentiality Agreement and may negotiate and participate in discussions and negotiations with such person concerning an Acquisition Proposal if, but only if, such person has, in the absence of any material violation of this Section 5.2 by the Company, submitted a bona fide written proposal to the Company relating to any such inquiriesAcquisition Proposal which the Board of Directors determines in good faith, proposalsafter consultation with its financial advisor, discussions, is or negotiations or any effort or attempt by any Person is reasonably likely to make, an SPAC Acquisition lead to a Superior Proposal. From and after the date hereofhereof and prior to the Acceptance Time, SPAC the Company shall within twenty-four (24) hours notify Parent in writing in the event that the Company or any of the Company Subsidiaries or Representatives receives
(i) any Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of the Company Subsidiaries other than requests for information in the ordinary course of business and, in the good faith judgment of the Company Board of Directors, unrelated to an Acquisition Proposal, or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall provide Parent within such twenty-four (24) hour period with the identity of such Person and a copy of such Acquisition Proposal, inquiry or request (or, where such Acquisition Proposal is not in writing, a description of the material terms and conditions of such Acquisition Proposal, inquiry or request), including any material modifications thereto. The Company shall keep Parent reasonably informed in writing (and in any event no later than twenty-four (24) hours after the occurrence) of any material changes, developments, discussions or negotiations relating to any Acquisition Proposal and provide Parent with copies of all documents received or provided by the Company related to such Acquisition Proposal. Without limiting the foregoing, the Company shall within twenty-four (24) hours notify Parent in writing if the Company determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any agreement with any person subsequent to the date of this Agreement that would restrict the Company’s ability to provide such non-public information to Parent, and, if the Company or any Company Subsidiary is a party to any agreement that would prohibit the Company from providing such non-public information to Parent, prior to providing information to, or engaging in discussions or negotiations with, the counterparty to such agreement, the Company will obtain approval from the counterparty to such agreement to allow the Company to provide such information to Parent. The Company shall not, and shall cause the Company Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any of the Company Subsidiaries is or becomes a party; provided, however, that the Company and the Company Subsidiaries may respond to an unsolicited Acquisition Proposal submitted to the Company by a party that is bound by a standstill agreement and may decline to enforce or cause to be enforced its rights under such standstill agreement relating to the submission of such unsolicited Acquisition Proposal if, in either case, the Company Board of Directors determines in good faith, after consultation with outside counsel, that failure to so respond or failure to decline to take such action, as the case may be, would be inconsistent with the fiduciary duties of the Company Board of Directors to the shareholders of the Company under applicable Law. The Company will promptly provide to Parent any non-public information concerning the Company or the Company Subsidiaries provided or made available pursuant to this Section 5.2(b) which was not previously provided or made available to Parent.
(c) Except as set forth herein, neither the Company Board of Directors nor any committee thereof shall (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, in a manner adverse to the transactions contemplated by this Agreement to Parent or Sub, the Company Board Recommendation, (ii) approve or recommend or propose publicly to approve or recommend, any Acquisition Proposal (any action referred to in the foregoing clauses (i) and (ii) being referred to as an “Adverse Recommendation Change”) or (iii) enter into any written agreement providing for the consummation of any Acquisition Proposal (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything in this Agreement to the contrary, prior to the Acceptance Time, if (i) the Company receives a written, bona fide Acquisition Proposal from a third party, (ii) a material breach by the Company of this Section 5.2 has not contributed to the making of an Acquisition Proposal and (iii) the Company Board of Directors concludes in good faith, after consultation with outside counsel and its financial advisors, such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement which have been offered by Parent (if any) pursuant to this Section 5.2, the Company Board of Directors may, if it determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with the fiduciary duties of the Company Board of Directors to the shareholders of the Company under applicable Law, (A) effect an Adverse Recommendation Change and/or (B) terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (B), and any purported termination pursuant to the foregoing clause (B) shall be void and of no force or effect, unless in advance of or substantially concurrently with such termination the Company (1) pays the fee required by and pursuant to the terms of Section 8.2 and (2) immediately following such termination enters into a binding definitive agreement providing for such Superior Proposal; and provided, further, that the Company Board of Directors may not effect an Adverse Recommendation Change pursuant to the foregoing clause (A) or terminate this Agreement pursuant to the foregoing clause (B) unless (1) the Company shall not have breached in any material respect this Section 5.2, (2) the Company shall have provided prior written notice to Parent, at least three (3) business days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal), and shall have contemporaneously provided a copy of the proposed Alternative Acquisition Agreement with respect to such Superior Proposal, (3) prior to effecting such Adverse Recommendation Change or terminating this Agreement to enter into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal, the Company shall, and shall direct any of the Sponsors and cause its controlled Affiliates and its and their respective officers, directors and Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, and (4) following any negotiation described in the immediately cease and terminate all discussions and negotiations with preceding clause (3), such Acquisition Proposal continues to constitute a Superior Proposal. In the event of any Persons (other than material revisions to the Group Companiesterms of the Superior Proposal after the start of the Notice Period, the Shareholders Company shall be required to deliver a new written notice to Parent and their Representatives) to comply with the requirements of this Section 5.2 with respect to such new written notice, and the Notice Period shall be deemed to have re-commenced on the date of such new notice. Notwithstanding the foregoing, if fewer than three (3) business days remains before the then scheduled expiration date of the Offer, the Notice Period with respect to the Company Board of Directors effecting an Adverse Recommendation Change pursuant to the foregoing clause (A) shall equal twenty-four (24) hours, provided, however, that, in such a SPAC circumstance the Notice Period with respect to the Company terminating this Agreement pursuant to the foregoing clause (B) shall remain three (3) business days. Any Adverse Recommendation Change shall not change the approval of the Company Board of Directors for purposes of causing any state takeover statute or other state Law to be inapplicable to the transactions contemplated by this Agreement, including each of the Offer and the Merger or by the Tender and Voting Agreement with the CEO Shareholder. For purposes of this Agreement, a “Superior Proposal” is a bona fide written Acquisition Proposal to acquire at least fifty percent (50%) of the equity securities of the Company or at least fifty percent (50%) of the consolidated total assets of the Company and the Company Subsidiaries, (A) on terms which the Company Board of Directors determines in its good faith judgment (after consultation with its financial and legal advisors) to be more favorable to the holders of Shares than the Offer and the Merger taking into account all financial, regulatory, legal and other aspects of such proposal, and (B) which the Company Board of Directors has determined in its good faith judgment (after consultation with its financial and legal advisors) to be reasonably capable of being completed on the terms proposed, taking into account all financial, regulatory, legal and other aspects of such proposal.
(e) Notwithstanding the foregoing, the Company Board of Directors may withdraw or modify the Company Board Recommendation in the absence of a Superior Proposal if the Company Board of Directors has concluded in good faith, after consultation with its outside counsel, that failure to so withdraw or modify the Company Board Recommendation would be inconsistent with the fiduciary obligations of the Company Board of Directors to the shareholders of the Company under applicable Law, provided, however, that the Company Board of Directors shall not so withdraw or modify the Company Board Recommendation unless the Company has (A) provided to Parent at least three (3) business days prior written notice (or such shorter period as remains prior to the then-scheduled expiration date of the Offer) advising Parent that the Company Board of Directors intends to take such action and specifying the reasons therefore in reasonable detail and (B) during such three (3) business day period, or shorter period, as the case may be, if requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need or reason for the withdrawal or modification.
(f) The Company shall promptly (but in no event later than two (2) business days after the date of this Agreement) demand that each person that, as of the date of this Agreement, has executed a confidentiality agreement in connection with a potential Acquisition Proposal return or destroy, in each case, to the extent permitted by the terms of the applicable confidentiality agreement, all confidential information heretofore furnished to such individual or entity by or on behalf of the Company or a Company Subsidiary.
(g) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s shareholders a position contemplated by Rules 14D-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosures to its shareholders if the Company Board of Directors has reasonably determined in good faith, after consultation with outside legal counsel, that failure to do so could be inconsistent with any applicable Law. In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Company that describes the Company's receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, or any “stop, look and listen” communication by the Company Board of Directors pursuant to Rule 14d-9(f) of the Exchange Act or any similar communication to the shareholders of the Company, shall not constitute an Adverse Recommendation Change or an approval or recommendation with respect to any Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC)
No Solicitation. (a) From and after the date hereof of this Agreement until the Merger Closing Date orearlier of (i) the Effective Time, if earlier(ii) the date that is six months from the date hereof, or (iii) the date of termination of this Agreement in accordance with Article XIIpursuant to Section 7 hereof, SPAC Target shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly through any officer, director, employee, representative or agent of Target or otherwise, (ai) solicit, initiate, or pursue encourage any inquiryinquiries or proposals that constitute, indication of interestor could reasonably be expected to lead to, a proposal or offer relating for a merger, consolidation, share exchange, business combination, sale of all or substantially all assets, sale of shares of capital stock or similar transactions involving Target other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an SPAC "Acquisition Proposal"), (bii) engage or participate in negotiations or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalconcerning, or provide any non-public information to any third-party access to the businessesperson or entity relating to, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (diii) grant agree to, enter into, accept, approve or recommend any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. Target represents and warrants that it has the legal right to terminate any pending discussions or negotiations relating to an Acquisition Proposal without payment of any fee or other penalty.
(b) From and after the date of this Agreement until the earlier of (i) the Effective Time, (ii) the date that is six months from the date hereof, SPAC shallor (iii) the date of termination of this Agreement pursuant to Section 7 hereof, and shall direct Acquiror will not, directly or indirectly, through any shareholder, officer, director, employee, affiliate or agent of Acquiror, or otherwise, take an action to solicit, initiate, seek, entertain, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any discussions or negotiations with, any third party regarding any acquisition of the Sponsors and its controlled Affiliates and its and their respective officersassets, directors and Representatives tobusinesses, immediately cease and terminate all capital stock of a company in a similar industry to Target or any merger, consolidation or business combination with or involving a company in a similar industry to Target. Acquiror agrees that any such discussions and or negotiations with any Persons (other than discussions or negotiations with Target) in process as of the Group Companiesdate of this Agreement will be suspended during such period and that, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalin no event, will Acquiror accept or enter into an agreement concerning any such third-party transaction during such period.
Appears in 2 contracts
Sources: Merger Agreement (Wachtel Harry M), Merger Agreement (Autoinfo Inc)
No Solicitation. From (a) Each of GM and ▇▇▇▇▇▇ agrees that, during the date hereof until term of this Agreement, it shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its or its Subsidiaries' officers, directors, employees, investment bankers, attorneys, accountants, agents or other advisors or representatives (collectively, "Representatives"), directly or indirectly, to:
(i) solicit, initiate or knowingly facilitate or encourage the Merger Closing Date making by any Person (other than the other parties hereto) of any proposal, offer or inquiry that constitutes, or could reasonably be expected to lead to, a proposal for any merger, consolidation or other business combination involving ▇▇▇▇▇▇ and a third party, or any acquisition by a third party of any capital stock or any material portion of the assets (except for (A) acquisitions of assets in the ordinary course of business consistent with past practice and permitted by Section 8.2 of this Agreement, (B) dispositions of the assets or capital stock of DIRECTV Latin America, LLC ("DIRECTVLA") pursuant to an order or orders of a court of competent jurisdiction and (C) consummation of the transactions contemplated by the Transaction Agreements) of ▇▇▇▇▇▇ or any of its Significant Subsidiaries, or shares of GM Class H Common Stock or any combination of the foregoing (in each case, a "Competing Transaction");
(ii) participate in any discussions or negotiations regarding, or furnish or disclose to any Person any information with respect to or in furtherance of, or take any other action knowingly to facilitate any inquiries with respect to any Competing Transaction;
(iii) grant any waiver or release under any standstill or similar agreement with respect to ▇▇▇▇▇▇ or any of its Subsidiaries; or
(iv) execute or enter into any agreement, understanding or arrangement (other than a confidentiality agreement) with respect to any Competing Transaction, or approve or recommend or propose to approve or recommend any Competing Transaction or any agreement, understanding or arrangement relating to any Competing Transaction (or resolve or authorize or propose to agree to do any of the foregoing actions); provided, however, that:
(A) at any time prior to such time, if earlierany, that the Requisite Stockholder Approval shall have been received with respect to the Requisite Vote Matters, GM and ▇▇▇▇▇▇ may take any action described in the foregoing clauses (ii) or (iii) (in the case of clause (iii), only to the extent necessary to permit the discussions or negotiations contemplated by clause (ii)) in respect of any Person, but only if (1) such Person has delivered a proposal for a Competing Transaction that, in the good faith judgment of the GM Board of Directors is a Superior Proposal or is reasonably likely to lead to the delivery of a Superior Proposal and (2) the Board of Directors of GM, after consultation with counsel, determines in good faith that it is required to do so in order to comply with its fiduciary duties; provided, further, that (x) prior to GM or ▇▇▇▇▇▇ furnishing any confidential information to such Person, such Person shall have entered into a confidentiality agreement with GM and/or ▇▇▇▇▇▇ in substance substantially similar to the Confidentiality Agreement and (y) GM and ▇▇▇▇▇▇ shall promptly notify (but in no event later than 48 hours) the Purchaser of any such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the termination name of such Person and the material terms and conditions of any inquiries, proposals or offers, and shall keep the Purchaser reasonably informed as to the status thereof;
(B) each of GM and ▇▇▇▇▇▇ may enter into any agreement or arrangement (other than a confidentiality agreement, which may be entered into as contemplated in this Section 9.6) regarding any such Competing Transaction, or approve or recommend to its stockholders (or resolve to do so), or publicly propose to approve or recommend to its stockholders, any such Competing Transaction, but only if (1) GM has first given the Purchaser at least seventy-two (72) hours to respond to such Competing Transaction after GM has notified the Purchaser that, in the absence of any further action by the Purchaser, it would consider such Competing Transaction to be a Superior Proposal and would be required to withdraw, revoke or modify its recommendation of the Requisite Vote Matters, and given due consideration to any amendments or modifications to this Agreement proposed by the Purchaser during such period and (2) thereafter GM has terminated this Agreement in accordance with Article XIISection 3.2(c)(iii) hereof and simultaneously paid the GM Termination Fee pursuant to Section 3.4(a)(iv) hereof; and
(C) nothing herein shall limit GM's ability to comply in good faith, SPAC shall notto the extent applicable, with Rules 14d-9 and shall direct any 14e-2 of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly Exchange Act with regard to a tender or indirectly (a) solicit, initiate, exchange offer or pursue to make any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, disclosure required by Applicable Law.
(b) participate in or continue any discussions or negotiations with any third-party with respect toFor the purposes of this Agreement, or furnish or make available"Superior Proposal" means a bona fide, any information concerning SPAC to any written proposal by a third party relating for a Competing Transaction not solicited in violation of this Section 9.6 that is on terms that the GM Board of Directors determines in good faith, after consultation with its financial advisors and counsel, would, if consummated, result in a transaction that would be more favorable to an SPAC Acquisition ProposalGM and its stockholders (taking into account such factors as the GM Board of Directors in good ▇▇▇▇▇ ▇▇▇▇▇ relevant, or provide to any third-party access to including the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any identity of the Sponsors offeror and its controlled Affiliates all legal, financial, regulatory and its other aspects of the proposal, including the terms of any financing and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other the likelihood that the transaction will be consummated) than the Group Companies, transactions contemplated by the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalTransactions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hughes Electronics Corp), Stock Purchase Agreement (News Corp LTD)
No Solicitation. (a) From and after the date hereof of this Agreement until the Merger Closing Date or, if earlier, earlier of the termination of this Agreement in accordance with Article XIIor the Effective Time, SPAC shall the Company will not, and shall direct any of the Sponsor and will not permit its controlled Affiliates and its and their respective directors, officers, directors and Representatives not employees, investment bankers, attorneys, accountants or other representatives, agents or Affiliates to, directly or indirectly indirectly, (a1) solicit, initiate, or pursue knowingly encourage any inquiryAcquisition Proposals or any inquiries or proposals that could reasonably be expected to lead to any Acquisition Proposals, indication (2) engage in negotiations or discussions concerning, or provide any non-public information to any person or entity in connection with, any Acquisition Proposal or (3) agree to, approve, recommend or otherwise endorse or support any Acquisition Proposal. As used herein, the term "Acquisition Proposal" shall mean any proposal relating to a possible (1) merger, consolidation or similar transaction involving the Company or any of interestits Subsidiaries, (2) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or any of its Subsidiaries representing, in the aggregate, ten percent (10%) or more of the assets of the Company on a consolidated basis, (3) issuance, sale or other disposition of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase or securities convertible into, such securities) representing ten percent (10%) or more of the votes attached to the outstanding securities of the Company, (4) transaction with the Company in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, ten percent (10%) or more of the outstanding shares of Company Common Stock, (5) liquidation, dissolution, recapitalization or other similar type of transaction with respect to the Company, or (6) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the transactions contemplated hereby or any proposal or offer relating to an SPAC Acquisition Proposalmodification thereof submitted by Parent or any of its Affiliates. The Company will, (b) participate in or continue and will direct all its directors, officers, employees, investment bankers, attorneys, accountants and other representatives, agents and Affiliates to, immediately cease any and all existing activities, discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement parties conducted heretofore with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Career Education Corp), Merger Agreement (Whitman Education Group Inc)
No Solicitation. From (a) Except as set forth in Section 6.8(b), none of the date hereof until the Merger Closing Date or, if earlier, the termination Company nor any of this Agreement in accordance with Article XII, SPAC shall notits Subsidiaries shall, and each of them shall direct any of the Sponsor and cause its controlled Affiliates and its and their respective officers, directors directors, employees, agents, investment bankers, financial advisors, attorneys, accountants and Representatives other retained representatives (each a “Representative”) not to, directly or indirectly (ai) solicit, initiate, encourage, knowingly facilitate (including by way of providing information) or pursue induce any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish the making or make availablecompletion of, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide any inquiry, proposal or offer that is reasonably likely to lead to any third-party access Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or “group” (as such term is defined in Section 13(d) under the businessesExchange Act) any confidential or nonpublic information with respect to or in connection with, propertiesan Acquisition Proposal, assets (iii) take any other action to facilitate any inquiries or personnel the making of SPACany proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, in each case for the purpose of encouraging (iv) approve, endorse or facilitating an SPAC recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (cv) enter into any binding understandingagreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal (other than any confidentiality agreement required by Section 6.8(b)), binding arrangement, acquisition agreement, merger (vi) enter into any agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principleprinciple requiring, directly or indirectly, Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any other of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.8(a), if Company or any of its Representatives receives an unsolicited bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of this Section 6.8 by any Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to the Shareholders Meeting that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s financial advisors and outside legal counsel) to constitute or to be reasonably likely to result in a Superior Proposal, Company and its Representatives may take any action described in Section 6.8(a)(ii) above to the extent that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s outside legal counsel), that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that, prior to taking any such action, Company has obtained from such Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) an executed confidentiality agreement with respect containing terms substantially similar to, and no less favorable to an SPAC Company than, the terms of the Confidentiality Agreement.
(c) As promptly as practicable (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Company shall advise Purchaser in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, shall promptly provide to Purchaser a written summary of the material terms of such Acquisition Proposal, request or inquiry (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Acquisition Proposal and shall keep Purchaser promptly apprised of any related developments, discussions and negotiations (including providing Purchaser with a copy of all material documentation and correspondence relating thereto) on a current basis. Company agrees that it shall simultaneously provide to Purchaser any public information concerning Company that may be provided (pursuant to Section 6.8(b)) to any other Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) in connection with any Acquisition Proposal which has not previously been provided to Purchaser.
(d) grant Notwithstanding anything herein to the contrary, at any waivertime prior to the Shareholders’ Meeting, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiriesthe Board of Directors of Company may withdraw its recommendation of the Merger Agreement, proposalsthereby resulting in a Change in the Company Recommendation, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From if and only if (x) from and after the date hereof, SPAC Company has complied with Sections 6.3 and 6.8, and (y) the Board of Directors of Company has determined in good faith, after consultation with outside counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that the Board of Directors of Company may not effect a Change in the Company Recommendation unless:
(1) Company shall have received an unsolicited bona fide written Acquisition Proposal and the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by Purchaser;
(2) Company shall have provided prior written notice to Purchaser at least five (5) Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise Purchaser that the Board of Directors of Company has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Superior Proposal);
(3) during the Notice Period, Company shall, and shall direct cause its financial advisors and outside counsel to, negotiate with Purchaser in good faith (to the extent Purchaser desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(4) the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Purchaser, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, Company shall deliver a new written notice to Purchaser and shall again comply with the requirements of this Section 6.8(d) with respect to such new written notice, except that the Sponsors new Notice Period shall be two (2) Business Days. In the event the Board of Directors of Company does not make the determination referred to in clause (4) of this paragraph and thereafter seeks to effect a Change in the Company Recommendation, the procedures referred to above shall apply anew and shall also apply to any subsequent Change in the Company Recommendation.
(e) Company and its controlled Affiliates Subsidiaries shall, and its and shall cause their respective officers, directors and Representatives to, (i) immediately cease and terminate cause to be terminated any and all existing activities, discussions and or negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) conducted heretofore with respect to a SPAC any Acquisition Proposal; (ii) request the prompt return or destruction of all confidential information previously furnished in connection therewith; and (iii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or Company or any of its Subsidiaries or Representative is a party, and enforce the provisions of any such agreement.
(f) Nothing contained in this Agreement shall prevent Company or its Board of Directors from issuing as “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal or from making any disclosure to Company shareholders if Company’s Board of Directors (after consultation with outside counsel) concludes that its failure to do so would cause it to violate its fiduciary duties under applicable Law; 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.
(g) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Huntington Bancshares Inc/Md), Merger Agreement (Camco Financial Corp)
No Solicitation. From the date hereof until the Merger Closing Date or(a) OrthAlliance agrees that it and its Subsidiaries, if earlierofficers, the termination of this Agreement in accordance with Article XIIdirectors, SPAC employees, representatives, consultants, investment bankers, attorneys, accountants and agents shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly indirectly, (ai) encourage, solicit, initiate, facilitate, entertain or pursue accept any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (bii) enter into any agreement with respect to any Acquisition Proposal or enter into any arrangement, understanding or agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (iii) propose or make any Acquisition Proposal to any Person other than OCA and OCA Merger Sub, (iv) participate in or continue any way in discussions or negotiations with, or furnish or disclose any information to, any Person (other than OCA and OCA Merger Sub) in connection with any third-party or with respect to, or furnish take any other action to facilitate any inquiries or make availablethe making of any proposal that constitutes, or may reasonably be expected to lead to, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (dv) grant any waiverauthorize or permit its Subsidiaries, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiriesofficers, proposalsdirectors, discussionsemployees, or negotiations or any effort or attempt by any Person representatives, consultants, investment bankers, attorneys, accountants and agents to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct do any of the Sponsors foregoing; provided, however, that OrthAlliance, in response to an unsolicited, bona fide, written Acquisition Proposal, may, after giving notice to OCA and without limiting OrthAlliance's obligations under Section 8.4, take one or more of the following actions if the Board of Directors of OrthAlliance determines in good faith that the failure to take such action or actions would violate the fiduciary obligations of such Board of Directors under applicable law: (1) participate or engage in such discussions or negotiations with the Person making such Acquisition Proposal regarding such unsolicited, bona fide, written Acquisition Proposal, (2) provide or cause to be provided information to the Person making such Acquisition Proposal (pursuant to a confidentiality agreement with terms not more favorable to such third party than the terms of the Confidentiality Agreement between OrthAlliance and OCA), and (3) authorize and permit its controlled Affiliates and its and their respective officers, directors directors, employees, representatives, investment bankers, attorneys, accountants, financial advisors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect agents to a SPAC Acquisition Proposal.take
Appears in 2 contracts
Sources: Merger Agreement (Orthodontic Centers of America Inc /De/), Merger Agreement (Orthalliance Inc)
No Solicitation. From the date hereof until the Merger Closing Date orExcept as otherwise contemplated by this Agreement, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From from and after the date hereof, SPAC shallthe Company shall not, and the General Partner shall direct any of cause the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives Subsidiary Partnership not to, immediately cease and terminate all directly or indirectly, encourage, solicit, participate in or initiate discussions and or negotiations with with, or provide any Persons information to, any person or group (other than the Group CompaniesParent, the Shareholders Operating Partnership, Newco I, Newco II, Merger Sub or any affiliate, associate or designee of the Parent or the Operating Partnership) concerning any proposal for an acquisition of all or substantially all of the business and their Representativesproperties or partnership units or interests of the Company or the Subsidiary Partnership, whether by merger, tender offer, purchase of assets or partnership units or otherwise (any such proposal made after the date hereof, including any renewal of any such proposal, or new proposal, made after the date hereof by a party (other than the Parent, the Operating Partnership, Newco I, Newco II, Merger Sub or any affiliate, associate or designee of the Parent or the Operating 72 63 Partnership) that made any such proposal prior to the date hereof, an "ACQUISITION PROPOSAL"). As of the date of this Agreement, each of the Company, the General Partner and the Subsidiary Partnership hereby (a) represents that as of such date it and the Special Committee have (or immediately following the public announcement of the execution and delivery of this Agreement shall have) discontinued discussions or negotiations with all persons or groups (other than the Parent, the Operating Partnership, Newco I, Newco II, Merger Sub or any affiliate, associate or designee of the Parent or the Operating Partnership) with whom discussions or negotiations have previously been held concerning any proposal for an acquisition of all or substantially all of the business and properties or partnership units or interests of the Company or the Subsidiary Partnership, whether by merger, tender offer, purchase of assets or partnership units or otherwise, and (b) agrees not to, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide information to any such person or group concerning any proposal for an acquisition of all or substantially all of the business and properties or partnership units or interests of the Company or the Subsidiary Partnership, whether by merger, tender offer, purchase of assets or partnership units or otherwise other than in compliance with the provisions of this Section 5.5. Notwithstanding the foregoing, (i) the Board of Directors of the General Partner or the Special Committee may take, and disclose to the Unitholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to a SPAC any tender offer for Company Units and (ii) the Company, the General Partner and the Subsidiary Partnership may, directly or indirectly, furnish information 73 64 and access and may participate in discussions and negotiate with any person or group concerning any Acquisition ProposalProposal which the Board of Directors of the General Partner or the Special Committee determines in its good faith judgment, after consultation with its independent legal counsel, that it is necessary to do so in the exercise of its fiduciary obligations.
Appears in 2 contracts
Sources: Merger Agreement (Boykin Lodging Co), Merger Agreement (Red Lion Inns Limited Partnership)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier(i) Except as set forth in Sections 6.4(a)(ii) and 6.4(a)(iii), the termination of this Agreement in accordance with Article XII, SPAC shall not, MLP Entities and shall direct GP Holdings agree that neither they nor any of the Sponsor and its controlled Affiliates and its and their Subsidiaries, nor any of their respective officers, managers or directors (including the MLP GP Board) shall, and that they shall instruct and cause their respective Affiliates and Representatives (collectively, the “MLP Non-Solicit Parties”) not to, directly or indirectly indirectly:
(aA) solicit, initiate, solicit or pursue knowingly facilitate or encourage any inquiryinquiries, indication of interestdiscussions regarding, proposal or the making or submission of, any proposal, request or offer relating that constitutes, or could reasonably be expected to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect lead to, any Alternative Proposal;
(B) approve, endorse, recommend or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understandingContract or agreement in principle, binding arrangementwhether written or oral, acquisition agreement, merger agreement or similar definitive agreement, or with any Person (other than Parent and Merger Sub) concerning any letter of intent, memorandum of understanding understanding, acquisition agreement, merger agreement, joint venture agreement, partnership agreement or other similar Contract concerning an Alternative Proposal (other than negotiating and entering into a confidentiality and standstill agreement as described in principleSection 6.4(a)(iii)) (an “Alternative Acquisition Agreement”);
(C) terminate, amend, release, modify, or fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar Contract entered into by one or more of the MLP Group Entities in respect of or in contemplation of an Alternative Proposal (other agreement than to the extent the MLP GP Board determines in good faith, after consultation with its outside financial and legal advisors, that failure to take any such actions under this Section 6.4(a)(i)(C) would not be in the best interests of the Unitholders);
(D) conduct, engage in, continue or otherwise participate in any discussions or negotiations regarding any Alternative Proposal;
(E) furnish any non-public information relating to any of the MLP Group Entities, or afford access to the books or records or Representatives of any of the MLP Group Entities, to any third party that, to the Knowledge of the MLP Entities, after consultation with its Representatives, is seeking to or may make, or has made, an Alternative Proposal;
(F) take any action to make the provisions of any Takeover Laws inapplicable to any transactions contemplated by any Alternative Proposal; or
(G) resolve or publicly propose or announce to do any of the foregoing.
(ii) Notwithstanding anything to the contrary in this Agreement and subject to the conditions in Section 6.4(a)(iii) and solely in response to a Bona Fide Alternative Proposal made on or after the date of this Agreement and prior to the expiration of the Unitholder Consent Period, the MLP Non-Solicit Parties may, with respect to an SPAC Acquisition the Person that has made such Bona Fide Alternative Proposal:
(A) in response to a request therefor by such Person, provide information or (d) grant any waiver, amendment afford access to the books and records or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct Representatives of any of the Sponsors MLP Group Entities; and
(B) engage or participate in any discussions or negotiations with such Person (and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition such Bona Fide Alternative Proposal.
(iii) The MLP Entities may not take the actions described in Section 6.4(a)(ii) unless, prior to taking any such action:
(A) the MLP Entities have (1) received from such Person an executed confidentiality and standstill agreement on terms that are no less restrictive than those contained in the Confidentiality Agreement (and compliant with the last sentence of Section 6.4(g)) and (2) disclosed to Parent (and, if applicable, contemporaneously provided copies of) any non-public information to be provided to such Person and any books or records to which such Person will be afforded access, in each case, to the extent not previously provided to Parent;
(B) the MLP Entities have delivered to Parent written notice prior to taking any such action (1) stating that the MLP GP Board intends to take such action, (2) stating that the MLP GP Board has made the determination set forth in Section 6.4(a)(iii)(C) and (3) including an unredacted copy of such Bona Fide Alternative Proposal (including any materials relating to such Person’s proposed equity and debt financing, if any) and an executed copy of the confidentiality and standstill agreement described in Section 6.4(a)(iii)(A); and
(C) the MLP GP Board has determined in good faith, after consultation with its outside financial and legal advisors that such Bona Fide Alternative Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (PetroLogistics LP)
No Solicitation. From The Company will not, and will not permit or cause any of its subsidiaries or any of the date hereof until the Merger Closing Date or, if earlier, the termination officers and directors of this Agreement in accordance with Article XII, SPAC shall notit or its subsidiaries to, and shall direct it and its subsidiaries, employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives subsidiaries) not to, directly or indirectly (a) solicitindirectly, initiate, solicit, encourage or pursue otherwise facilitate any inquiry, indication inquiries or the making of interest, any proposal or offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of 15% or more of the consolidated assets or equity securities of the Company or any of its subsidiaries, other than transfers of Company Common Stock between and among entities associated or affiliated with the Stockholders (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company will not, and will not permit or cause any of its subsidiaries or any of the officers and directors of it or its subsidiaries to, and shall direct its and its subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an SPAC Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Board from (bi) participate complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (ii) at any time prior to the earlier to occur of (x) payment for shares of Company Common Stock pursuant to the Offer or (y) the approval of the Merger by the requisite vote of the stockholders of the Company (A) providing information in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal if the Board receives from the person so requesting such information an executed confidentiality agreement on terms substantially equivalent to those contained in the Confidentiality Agreement (as defined in Section 6.03); (B) engaging in any negotiations or continue discussions with any person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (i) in each such case referred to in clause (A), (B) or (C) above, the Board determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their fiduciary duties under applicable law and (ii) in each case referred to in clause (B) or (C) above, the Board of Directors of the Company determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a more favorable transaction than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement parties conducted heretofore with respect to an SPAC Acquisition Proposal, any of the foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate entities referred to in the first sentence hereof of the obligations undertaken in this Section 5.02 and in the Confidentiality Agreement. The Company will notify Parent immediately if any such inquiries, proposalsproposals or offers are received by, discussionsany such information requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such negotiations or any effort discussions. The Company also will promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return all confidential information heretofore furnished to such person by or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct on behalf of it or any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalsubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Superior Telecom Inc), Merger Agreement (Superior Telecom Inc)
No Solicitation. From (a) Each of the Sellers agrees that it shall, and shall cause each of its Subsidiaries and its and their Representatives to, cease immediately and cause to be terminated all existing activities, discussions or negotiations, if any, with any Persons with respect to, or that could reasonably be expected to result in any Acquisition Proposal. Except as provided in this Section 5.4, from the date hereof of this Agreement until the Merger Closing Date earlier of termination of this Agreement or the Closing, Sellers shall not, and will cause its Subsidiaries and its and their Representatives to not, directly or indirectly:
(i) initiate, solicit or knowingly encourage or induce any inquiry, or take any action intended to facilitate the making or announcement of, any offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal;
(ii) participate or engage in any discussions or negotiations regarding an Acquisition Proposal or furnish or disclose any non-public information relating to either Seller or any of their Subsidiaries, or their businesses, assets, liabilities or prospects or afford access to the properties, books or records of either Seller or any of their Subsidiaries to, any Person regarding an Acquisition Proposal except as provided in Section 5.4(c);
(iii) enter into any letter of intent, agreement in principle, acquisition agreement, understanding or similar agreement contemplating or relating to an Acquisition Proposal (other than a confidentiality and standstill agreement as contemplated in this Section 5.4); or
(iv) approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted by this Section 5.4).
(b) Sellers shall promptly notify Buyer (but in no event later than the end of the next Business Day) after receipt by a Seller of any Acquisition Proposal or any request for information or inquiry which could reasonably be expected to lead to an Acquisition Proposal. Such notice shall identify the Person or group making such Acquisition Proposal, request or inquiry and include a copy of all written materials provided in connection with such Acquisition Proposal, request or inquiry or, if earliersuch Acquisition Proposal, request or inquiry is not in writing, provide a summary of the termination material terms and conditions of any such Acquisition Proposal, request or inquiry. After receipt of the Acquisition Proposal, request or inquiry, Sellers shall promptly keep Buyer informed in all material respects of the status and details (including material amendments or proposed material amendments) of any such Acquisition Proposal, request or inquiry.
(c) If, prior to obtaining the Stockholder Approval either Seller receives an Acquisition Proposal that was not solicited in violation of Section 5.4(a) that the board of directors of Sellers determines in good faith, after consultation with outside counsel and its financial advisor (1) constitutes a Superior Proposal or (2) could reasonably be expected to result in a Superior Proposal, Sellers shall promptly provide to Buyer written notice that shall state expressly (A) that such Seller has received an Acquisition Proposal that constitutes a Superior Proposal or that could reasonably be expected to result in a Superior Proposal, and (B) the identity of the Person (the “Third Party”) making such Acquisition Proposal and the material terms and conditions of the Acquisition Proposal (the “Superior Proposal Notice”) and may then take the following actions (either directly or through its Subsidiaries or any of their Representatives) if the board of directors of Sellers determines, after consultation with outside counsel, that to do so is necessary to comply with its fiduciary obligations to Sellers’ stockholders under applicable law:
(i) furnish nonpublic information to the Third Party, provided, that (A) prior to so furnishing, Sellers receive from the Third Party an executed confidentiality agreement containing customary standstill provisions and other terms and conditions that are no less restrictive to such Third Party than the terms and conditions of the Confidentiality Agreement, and (B) on the date of the provision of any non-public information to such Third Party, Sellers furnish a copy of such non-public information of Sellers to Buyer (to the extent such non-public information has not been previously so furnished); and
(ii) participate or engage in any discussions or negotiations with the Third Party with respect to the Acquisition Proposal.
(d) For a period of not less than three Business Days prior to Sellers accepting a definitive Superior Proposal, Sellers shall, if requested by Buyer, negotiate in good faith with Buyer to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal. The terms and conditions of this Section 5.4(d) shall again apply to any subsequent Superior Proposal after any changes made to this Agreement.
(e) Except as expressly permitted by Section 5.4(f), neither Sellers board of directors nor any committee of Sellers board of directors shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Buyer, Sellers’ Board Recommendation or (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal (any action described in the foregoing (i) or (ii) being referred to as a “Change of Recommendation”). Any such Change of Recommendation or the entry by a Seller into any letter of intent, agreement in principle, acquisition agreement, understanding or similar agreement contemplating or relating to an Acquisition Proposal shall not change the approval of Sellers board of directors for purposes of causing any state takeover statute or other state law to be applicable to the transactions contemplated hereunder.
(f) In the event that prior to obtaining the Stockholder Approval, Sellers board of directors determines in good faith, after consultation with its financial advisor and outside counsel, that an Acquisition Proposal not solicited in violation of Section 5.4(a) has not been withdrawn and continues to constitute a Superior Proposal following the expiration of the three Business Day period referenced in Section 5.4(d), Sellers may effect a Change of Recommendation and/or terminate this Agreement in accordance with Article XIISection 10.1(d)(i); provided that Sellers board of directors has concluded in good faith, SPAC following consultation with outside legal counsel, that, in light of such Superior Proposal, the failure of Sellers board of directors to effect a Change of Recommendation or to terminate this Agreement is necessary to comply with its fiduciary obligations to either of Sellers stockholders under applicable law; provided further, however that Sellers shall notnot terminate this Agreement pursuant to Section 10.1(d)(i), and any purported termination pursuant to Section 10.1(d)(i) shall direct any be void and of no force or effect, unless Sellers shall have complied in all material respects with all of the Sponsor provisions of this Section 5.4, including the notification provisions in this Section 5.4, and its controlled Affiliates and its and their respective officers, with all applicable requirements of Section 10.3 (including the payment of the Termination Fee prior to or concurrently with such termination).
(g) Sellers shall provide Buyer with three Business Days prior notice (or such lesser prior notice as is provided to the members of Sellers board of directors) of any meeting of Sellers board of directors and Representatives not to, directly or indirectly (a) solicit, initiate, committee of Sellers board of directors at which the Sellers board of directors or pursue committee thereof is reasonably expected to discuss any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, . Nothing contained in this Section 5.4 or elsewhere in this Agreement shall prohibit Parent from (bx) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC taking and disclosing to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to its stockholders a position contemplated by Rule 14e-2(a) under the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition ProposalExchange Act, or (dy) grant making any waiverdisclosure to the stockholders of the Sellers if Parent’s board of directors determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be reasonably expected to be a breach of its duty of candor under applicable law; provided, amendment however, that any action taken or release disclosure made under this Section 5.4 shall not limit or modify the effect that any such action or disclosure may have under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any other provision of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalthis Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Clarient, Inc), Asset Purchase Agreement (Trestle Holdings Inc)
No Solicitation. From At all times during the date hereof period commencing with the No-Shop Period Start Date and continuing until the Merger Closing Date or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Article XIIIX and the Effective Time, SPAC the Company and its Subsidiaries shall not, and nor shall direct they authorize or permit any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not toRepresentatives, directly or indirectly indirectly, to (ai) solicit, initiate, induce or pursue take any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case action for the purpose of encouraging or facilitating the making, submission or announcement of, an SPAC Acquisition Proposal, (ii) furnish to any Person (other than Dimensional or Merger Sub or any designees of Dimensional or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other than Dimensional or Merger Sub or any designees of Dimensional or Merger Sub) in connection with any proposal that constitutes or could reasonably be expected to lead to an Acquisition Proposal, or take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (other than to notify such Person as to the existence of the provisions of this Section 7.3), (iv) approve, endorse or recommend, or propose to approve, endorse or recommend, any Acquisition Proposal, (cv) approve or enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, agreement in principle, memorandum of understanding or agreement in principleother agreement, contract or arrangement contemplating or otherwise relating to an Acquisition Proposal (except as permitted by Section 7.3(c)), or which would require the Company to terminate this Agreement or any other agreement with respect to an SPAC Acquisition Proposalfurther discussions or negotiations between the Company and Dimensional (except as permitted by this Agreement), or (dvi) grant terminate, amend, release or waive any waiver, amendment or release rights under any confidentiality “standstill” or other similar agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations between the Company or any effort or attempt by of its Subsidiaries and any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalDimensional).
Appears in 2 contracts
Sources: Merger Agreement (Dimensional Associates, LLC), Merger Agreement (Orchard Enterprises, Inc.)
No Solicitation. From After the date hereof until the Merger Closing Date orNo-Shop Period Start Date, if earlier, the termination of this Agreement no Stockholder (in accordance with Article XII, SPAC shall not, and shall direct any its capacity as a stockholder of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly Company) shall (ai) solicit, initiate, propose or pursue induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, indication of interest, proposal or offer inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than to Parent or any designees of Parent) any non-public information relating to the Company Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group (other than Parent or any designees of Parent), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an SPAC Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, ; or (biii) participate or engage in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or Person (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, other than Parent or any letter designees of intent, memorandum of understanding or agreement in principle, or any other agreement Parent) with respect to an SPAC Acquisition Proposal (other than informing such Persons of the provisions contained in this Section 3.2 and contacting the Person making the Acquisition Proposal to the extent necessary to clarify the terms of the Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all ); provided that each Stockholder may participate in discussions and negotiations with any Persons Person with whom the Company Board (other than or the Group CompaniesSpecial Committee of the Company Board) is engaging in discussions and negotiations pursuant to and in compliance with Section 5.3 of the Merger Agreement, and, solely to the Shareholders extent the Company is permitted under the Merger Agreement to take the actions set forth in Section 5.3(c) of the Merger Agreement, each Stockholder may also take such permitted actions, including to review any Acquisition Proposal and their Representatives) to discuss and confirm with respect the Company the willingness of such Stockholder to support and sign a SPAC voting agreement in the event of any termination of the Merger Agreement in connection with such Acquisition ProposalProposal (including, for the avoidance of doubt, during the Notice Period contemplated by Section 5.3 of the Merger Agreement).
Appears in 2 contracts
Sources: Voting Agreement (Vista Equity Partners Fund Viii, L.P.), Voting Agreement (Disco (Guernsey) Holdings L.P. Inc.)
No Solicitation. (a) From the date hereof of this Agreement until the Merger Closing Date or, if earlier, the earlier of termination of this Agreement in accordance with Article XIISection 6.01 (and the payments, SPAC if any, required to be made in connection with such termination pursuant to Section 6.03(a) have been made) or the Effective Time, and except as set forth in Section 4.02(b), Company shall not, and shall direct not permit any of the Sponsor its Subsidiaries to, and shall cause its and its controlled Affiliates and its and their respective Subsidiaries' officers, directors directors, employees, consultants, representatives and Representatives other agents, including, but not limited to, investment bankers, attorneys and accountants (collectively, the "Representatives"), not to, directly or indirectly indirectly, (ai) solicit, initiate, or pursue encourage, or knowingly induce, or take any action to facilitate the making of, any inquiry, indication of interestoffer or proposal that constitutes, proposal or offer relating may reasonably be expected to an SPAC lead to, any Acquisition Proposal, or (bii) participate in or continue any discussions or negotiations regarding any Acquisition Proposal or, in connection with any third-party Acquisition Proposal, furnish or provide access to any Person (other than Parent and Acquisition Sub and their Representatives) to properties, books and records or any nonpublic information or data with respect toto Company or any of its Subsidiaries, or furnish (iii) approve or make availablerecommend, or propose to approve or recommend, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (civ) enter into any binding agreement, understanding, binding arrangement, acquisition agreement, merger agreement letter of intent or similar definitive agreementdocument contemplating or otherwise relating to any Acquisition Proposal (except for any confidentiality agreement required by Section 4.02(b)(i)) or approve or resolve to approve any Acquisition Proposal, or (v) take any letter action to make the provisions of intentthe Rights Agreement or any "fair price," "moratorium," "control share acquisition," "business combination" or other similar anti-takeover statute or regulation or any restrictive provision of any applicable anti-takeover provision in Company's Certificate of Incorporation or By-Laws inapplicable to any specific transactions contemplated by an Acquisition Proposal.
(b) Notwithstanding the foregoing, memorandum this Section 4.02 shall not prohibit Company or the Representatives from:
(i) participating in any discussions or negotiations regarding any Acquisition Proposal or responding to an unsolicited, bona fide and written Acquisition Proposal that is submitted to Company by any Person (including any Person with whom Company was in discussions regarding a potential Acquisition Proposal prior to the date of understanding this Agreement) after the date of this Agreement or, in connection with any such Acquisition Proposal, furnishing or agreement providing access to any such Person to properties, books and records or any nonpublic information or data with respect to Company or any of its Subsidiaries or Affiliates if and only if (A) the Board of Directors determines in principlegood faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), (x) that such Person is reasonably capable of consummating such Acquisition Proposal taking into account the legal, financial, regulatory and other aspects of such Acquisition Proposal and (y) that such Acquisition Proposal will result in, or could reasonably be expected to constitute or result in, a Superior Proposal from the party that made the applicable Acquisition Proposal (or such party's Affiliates), and (B) the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that the taking of such action may be reasonably necessary in order for the Board of Directors to comply with its fiduciary duties to Company's shareholders under applicable Law, and (C) within one Business Day following the determinations by the Board of Directors referred to in clauses (A) and (B) above Company gives Parent written notice of such determinations, and (D) in each such case, the Board of Directors has received from the Person being furnished or disclosed any other nonpublic information, an executed confidentiality agreement on terms substantially similar and not less restrictive than the Confidentiality Agreement; or
(ii) approving or recommending, or entering into, a definitive agreement with respect to an SPAC unsolicited, bona fide and written Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person Proposal that is submitted to make, an SPAC Acquisition Proposal. From and Company after the date hereofof this Agreement if and only if the Board of Directors determines in good faith, SPAC shallafter consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that such proposal is a Superior Proposal and that the termination of this Agreement to accept such Superior Proposal or the recommendation of such Superior Proposal to the shareholders of Company is reasonably necessary in order for the Board of Directors to comply with its fiduciary duties to Company's shareholders under applicable Law; provided, however, that Company shall direct not have the right to take any such action or to terminate this Agreement pursuant to Section 6.01(d)(ii) of this Agreement and the Sponsors Board of Directors shall not recommend a Superior Proposal to Company's shareholders pursuant to this Section 4.02, unless prior to any such termination: (1) Company has provided Parent with written notice that it intends to terminate this Agreement pursuant to Section 6.01(d)(ii) of this Agreement and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) take such action with respect to a SPAC Superior Proposal, such notice to specify in reasonable detail the material terms and conditions of the Superior Proposal then determined to be more favorable, the parties thereto, and shall be accompanied by a copy of the proposed acquisition agreement for such Superior Proposal and any ancillary agreements each in substantially the form to be entered into, such notice and documents to be delivered not less than two full Business Days prior to the time the action is to be taken; (2) during the two full Business Days period following the delivery of the notice referred to in clause (1) above (the "Negotiation Period"), Parent shall have the right to propose adjustments in the terms and conditions of this Agreement and Company and its advisors shall negotiate in good faith with Parent concerning adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal; (3) following the Negotiation Period, the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that such third party proposal is a Superior Proposal and that the termination of this Agreement to accept such Superior Proposal and/or the recommendation of such Superior Proposal to the shareholders of Company is reasonably necessary in order for the Board of Directors to comply with its fiduciary duties to Company's shareholders under applicable Law; and (4) after the Negotiation Period, Company delivers to Parent written notice of termination of this Agreement pursuant to Section 6.01(d)(ii).
Appears in 2 contracts
Sources: Merger Agreement (Cpac Inc), Merger Agreement (Cpac Inc)
No Solicitation. (a) From and after the date hereof until the Merger earlier of the Closing Date or, if earlier, or the termination of this Agreement in accordance with Article XIIpursuant to Section 8, SPAC the Company shall not, and nor shall direct it permit any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not Subsidiaries to, directly authorize any Affiliate, officer, director, manager or indirectly employee of, or any investment banker, attorney or other advisor or representative (acollectively, "REPRESENTATIVES") of the Company or any of its Subsidiaries to (i) solicit, initiate, facilitate or pursue encourage or otherwise disclose nonpublic information in furtherance of, any inquiryinquiries relating to, indication of interestor the submission of, proposal or offer relating to an SPAC any Acquisition Proposal, ; (bii) participate in or continue conduct any discussions or negotiations with regarding any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide furnish to any third-party Person any information or data with respect to or provide access to the businessesproperties of the Company or any of its Subsidiaries, propertiesor take any other action to facilitate the making of any proposal that constitutes, assets or personnel of SPACmay reasonably be expected to lead to, in each case for the purpose of encouraging any Acquisition Proposal; (iii) approve or facilitating an SPAC recommend or propose publicly to approve or recommend any Acquisition Proposal or (civ) approve or recommend or propose to approve or recommend or execute or enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, merger agreement, acquisition agreement, option agreement or other similar Contract or propose publicly or agree to do any of the foregoing related to any Acquisition Proposal; provided that (subject to Section 5.3(b)) nothing contained in this Section 5.3 or any other agreement provision of this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company Stockholders a position with respect to an SPAC Acquisition Proposala tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the foregoing, prior to the time of acceptance and deposit of funds for payment in accordance with Section 1.1(b) for shares of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or (d) grant any waiverits Subsidiaries, amendment properties or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by assets to any Person to make, an SPAC Acquisition Proposal. From or "group" (as defined in the Exchange Act and after the date hereof, SPAC shall, rules promulgated thereunder) and shall direct any of the Sponsors may negotiate and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all participate in discussions and negotiations with any Person or group concerning an Acquisition Proposal (as defined below), if:
(i) such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall not be materially more favorable to such Person or group 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 disclosed by the Company to Parent by this Section 5.3);
(ii) such Person or group has submitted a written Acquisition Proposal that has been determined or is reasonably likely to be determined to be a Superior Proposal; EXECUTION VERSION
(iii) in the good faith opinion of the Company Board, determined after consulting with independent legal counsel to the Company, that doing so is necessary for the directors to comply with their fiduciary duties to the Company Stockholders under applicable Law; and
(iv) the Company has notified Parent in writing of its intention to engage in such discussions or negotiations or to provide such confidential information not less than three Business Days prior to so doing. The Company will promptly notify Parent in writing of the existence of any proposal, discussion, negotiation or inquiry received by the Company regarding any Acquisition Proposal. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other Person in connection with any Acquisition Proposal that was not previously provided to Parent. The Company will keep Parent informed on a prompt basis of the status of any such Acquisition Proposal and of the status of any discussions or negotiations relating to any Acquisition Proposal.
(b) Except as set forth in this Section 5.3(b), the Company Board (i) shall recommend that the Company Stockholders accept the Offer and tender their shares of Company Common Stock pursuant to the Offer and, to the extent necessary under applicable Law to accomplish the Merger, adopt this Agreement; (ii) shall not withdraw, modify, or qualify or propose to withdraw or modify, in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation; (iii) shall not approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (iv) shall not enter into any agreement with respect to any Acquisition Proposal (other than a confidentiality agreement that is entered into in accordance with Section 5.3(a)). Notwithstanding the foregoing, subject to compliance with the provisions of this Section 5.3, prior to the time of acceptance and deposit of funds for payment in accordance with Section 1.1(b) for shares of Company Common Stock pursuant to the Offer, the Company Board, after consulting with outside legal counsel, may withdraw, modify or qualify the Company Board Recommendation, approve or recommend, or propose to approve or recommend, a Superior Proposal, and/or enter into an agreement with respect to a Superior Proposal, if the Company Board determines in good faith that doing so is necessary for the directors to comply with their fiduciary duties to the Company Stockholders under applicable Law; provided that in each case (A) the Company has given Parent written notice at least three Business Days in advance of effecting such action that the Company Board has received a Superior Proposal that it intends to accept, which specifies all of the terms and conditions of such Superior Proposal (other than immaterial terms), and furnishes Parent with a copy of all the relevant proposed transaction agreements, if such exist, with the Person making such Superior Proposal and identifies such Person or Persons making such Superior Proposal and (B) during the period of not less than three Business Days following the delivery of the notice referred to in clause (A) above and prior to effecting such action, the Company has negotiated, and has used all commercially reasonable efforts to cause its financial and legal advisors to negotiate, with Parent in good faith (to the extent that Parent desires to negotiate) to make adjustments in the terms and conditions of this Agreement so that the Acquisition Proposal shall cease to constitute a Superior Proposal. EXECUTION VERSION
(c) Nothing in this Section 5.3, and no action taken by the Company Board pursuant to this Section 5.3, will permit the Company to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal (other than a confidentiality agreement to the extent permitted under Section 5.3 hereof unless the Company or Parent has first terminated this Agreement pursuant to Section 8).
(d) For purposes of this Agreement, "ACQUISITION PROPOSAL" means any bona fide offer, proposal or other indication of interest regarding any of the following (other than the Group Companiestransactions provided for in this Agreement involving the Company): (i) any merger, consolidation, share exchange, recapitalization, reorganization, business combination, liquidation, dissolution or other similar transaction involving the Shareholders Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 15% or more of the Assets of the Company (including the stock of its Subsidiaries) and their Representativesits Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any purchase or sale of or tender offer or exchange offer for, which, if consummated, would result in any Person (or the equity holders of such Person) beneficially owning securities representing 15% or more of the outstanding shares of capital stock of the Company or its Subsidiaries, 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 do any of the foregoing or any agreement to engage in any of the foregoing except "Acquisition Proposal does not include any offer or proposal by Parent or its Affiliates. For purposes of this Agreement, "SUPERIOR PROPOSAL" shall mean a written Acquisition Proposal with respect to the Company which the Company Board concludes in good faith, after consultation with its financial advisors and legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal (including any break-up fees, expense reimbursement provisions and conditions to consummation), as well as after giving effect to all of the adjustments, if any, which are in fact offered by Parent pursuant to Section 5.3(b) (i) is more favorable to the Company Stockholders, from a SPAC financial point of view, than the transactions contemplated by this Agreement and (ii) to the extent cash consideration, if any, is contemplated, is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of "Superior Proposal," the term Acquisition Proposal shall have the meaning assigned to such term in this Section 5.3(d), except that the reference to "15% or more" in the definition of "Acquisition Proposal." shall be deemed to be a reference to "a majority" and "Acquisition Proposal" shall only be deemed to refer to a transaction involving a majority of the equity securities of the Company or all or substantially all of the consolidated assets of the Company and its Subsidiaries; provided that no Acquisition Proposal shall constitute a Superior Proposal if it resulted from a breach or was negotiated by the Company in violation of this Section 5.3 or if the Company failed to (A) give Parent written notice as provided in clause (A) of the last sentence of Section 5.3(b), (B) negotiate, or use its commercially reasonable efforts to cause its financial and legal advisors to negotiate, with Parent in good faith (as required by Section 5.3(b) and to the extent Parent desired to negotiate) to make adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal or (C) in all material respects, keep Parent informed on a prompt basis of the status of any such Acquisition Proposal and of the status of any discussions or negotiations relating to any Acquisition Proposal. EXECUTION VERSION
Appears in 2 contracts
Sources: Merger Agreement (Superior Consultant Holdings Corp), Merger Agreement (Affiliated Computer Services Inc)
No Solicitation. (a) From the date hereof until the Merger Closing Date or, if earlierExpiration Date, the termination of this Agreement in accordance with Article XII, SPAC Stockholder shall not, and shall direct any of the Sponsor and instruct its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly indirectly, (ai) initiate, seek or solicit, initiateor knowingly encourage or facilitate (including by way of furnishing non-public information) or take any other action that is reasonably expected to promote, directly or indirectly, any inquiries or the making or submission of any proposal that constitutes, or pursue any inquirywould reasonably be expected to lead to, indication of interest, proposal or offer relating an Acquisition Proposal with respect to an SPAC Acquisition ProposalAkebia, (bii) participate or engage in or continue any discussions or negotiations with with, or disclose any thirdnon-party public information or data relating to, Akebia or any of its Subsidiaries to any Person that has made or could reasonably be expected to make an Acquisition Proposal with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal Akebia or (ciii) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or including any letter of intent, memorandum of understanding or understanding, agreement in principle, merger agreement, acquisition agreement or any other agreement similar agreement, with respect to an SPAC Acquisition Proposal with respect to Akebia. The Stockholder shall, and shall instruct its Representatives to, (x) cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than Akebia, Keryx and their Affiliates) conducted heretofore with respect to an Acquisition Proposal, or (d) grant any waiverwhich could reasonably be expected to lead to an Acquisition Proposal, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiriesand, proposalsin connection therewith, discussions, or negotiations or any effort or attempt immediately discontinue access by any Person (other than Akebia, Keryx and their Affiliates) to makeany data room (virtual or otherwise) established for such purpose and (y) request the return or destruction of all confidential and non-public information provided to third parties since January 1, 2017, relating to an SPAC Acquisition Proposal. From and after , within two (2) Business Days from the date hereof.
(b) In addition to the obligations set forth in Section 4(a), SPAC the Stockholder shall, as promptly as practicable after receipt thereof, and in any event within 24 hours, advise Akebia in writing of any request for information or any Acquisition Proposal with respect to Akebia, and the terms and conditions of such request, Acquisition Proposal, inquiry, discussions or negotiations, and the Stockholder shall direct provide to Akebia copies of any written materials received by the Stockholder in connection with any of the Sponsors foregoing and its controlled Affiliates and its and their respective officersthe identity of the Person or group making any such request, directors and Representatives to, immediately cease and terminate all Acquisition Proposal or inquiry or with whom any discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalare taking place.
Appears in 2 contracts
Sources: Voting Agreement, Voting Agreement (Keryx Biopharmaceuticals Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC (a) The Company shall not, nor shall it authorize or permit any of its Affiliates to, and shall direct any of the Sponsor not authorize or permit its and its controlled Affiliates and its and their Affiliates’ respective officers, directors and Representatives not to, directly or indirectly (ai) solicit, initiateinitiate or knowingly encourage or otherwise take any action to facilitate any inquiries regarding, or pursue the making of, any inquiry, indication of interest, proposal or offer relating that constitutes, or may reasonably be expected to an SPAC lead to, the submission of any Company Acquisition Proposal, or, (bii) participate subject to Section 4.7(b), conduct or engage in or continue any discussions or negotiations with with, disclose any thirdnon-party with respect public information relating to the Company or any of its Subsidiaries to, or furnish knowingly assist, participate in, facilitate or make availableencourage any effort by, any information concerning SPAC to any third party relating that, to an SPAC the Company’s Knowledge is seeking to make, or has made, any Company Acquisition Proposal, or provide (iii) subject to Section 4.7(b), approve, endorse or recommend any third-party access to the businessesCompany Acquisition Proposal, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (civ) subject to Section 4.7(b), enter into any binding understandingagreement in principle, binding arrangementletter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar definitive agreementContract (other than, or for the avoidance of doubt, an Acceptable NDA to the extent permitted by Section 4.7(b)) relating to any letter of intentCompany Acquisition Proposal (each, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC a “Company Acquisition ProposalAgreement”), or (dv) subject to Section 4.7(b), grant any waiver, amendment or release under any standstill or confidentiality agreement or any Anti-takeover Laws or otherwise knowingly facilitate fail to enforce any of the foregoing (it being understood that the Company shall immediately take all steps within its power necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of Parent’s Affiliates, under any such inquiries, proposals, discussionsprovisions), or negotiations (vi) resolve or agree to do any effort or attempt by of the foregoing. Subject to Section 4.7(b), neither the Board nor any Person to committee thereof shall make, an SPAC withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Sub, the Company Board Recommendation, or recommend a Company Acquisition Proposal. From and , fail to recommend against acceptance of any tender offer or exchange offer for the shares of Company Common Stock within ten (10) Business Days after the date hereofcommencement of such offer, SPAC or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing a “Change in Recommendation”). The Company shall, and shall direct cause its Affiliates to, cease immediately and cause to be terminated, and shall not authorize or permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the Sponsors date hereof with respect to any Company Acquisition Proposal and shall use its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its controlled Affiliates to return or destroy (and confirm destruction of) all such information, subject to Section 4.7(b), and shall terminate access of all Persons (other than Parent, the Company and their respective Affiliates and Representatives) to any “data room” with respect to any Company Acquisition Proposal.
(b) Notwithstanding the provisions of Section 4.7(a), prior to the receipt of the Required Company Vote, the Board, directly or indirectly through any Representative, may, subject to Section 4.7(c) and provided that the Company has complied with Section 4.7(a) with respect to the applicable third party, (i) participate in negotiations or discussions with such third party that has made a bona fide, unsolicited Company Acquisition Proposal that the Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, constitutes or could reasonably be expected to result in a Superior Proposal, and the Company, its Affiliates and its and their respective officersits Affiliates’ Representatives may enter into an Acceptable NDA with such third party, directors (ii) furnish to such third party information relating to the Company or any of its Subsidiaries; provided, that all material non-public information provided to such person has previously been provided to Parent prior to or is provided to Parent contemporaneously with the provision to such Person and Representatives to(iii) grant a waiver under a standstill agreement, immediately cease but in each case referred to in the foregoing clauses (i), (ii) and terminate all discussions (iii), (A) only if the Board determines in good faith, after consultation with the Company’s outside legal counsel and negotiations financial advisors, that the failure to take such action would be inconsistent with the Board’s fiduciary duties under applicable Law and (B) such third party executes a confidentiality agreement that constitutes an Acceptable NDA. Nothing contained in this Section 4.7 shall prevent the Board from disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Company Acquisition Proposal or any Persons other disclosure required by applicable Law, if the Board determines in good faith, after consultation with the Company’s outside legal counsel, that failure to disclose such position would result in a violation of applicable Law. Any public disclosure by the Company relating to a Company Acquisition Proposal (other than a “stop, look and listen” or similar communication of the Group Companiestype contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a Change in Recommendation unless the Board expressly publicly reaffirms its approval or recommendation of this Agreement and the Merger in such disclosure, or in the case of a “stop, look and listen” or similar communication, in a subsequent disclosure on or before the earlier of (i) the last day of the ten (10) business day period under Rule 14d-9(f) under the Exchange Act and (ii) two (2) Business Days before the Company Shareholders’ Meeting.
(c) The Company shall notify Parent promptly (but in any event within twenty-four (24) hours and prior to engaging in any of the actions under Section 4.7(b)) of (i) any Company Acquisition Proposal, (ii) any initial request for non-public information concerning the Company or any Company Subsidiary related to, or from any Person or group who would reasonably be expected to make a Company Acquisition Proposal, or (iii) any initial request for discussions or negotiations related to any Company Acquisition Proposal. In such notice, the Shareholders Company shall identify the third party making, and their details of the material terms and conditions of, any such Company Acquisition Proposal, request, or inquiry and provide copies of any written proposals, draft agreements and all draft or executed financing commitments and related material documentation. The Company shall keep Parent promptly informed of the status of any such Company Acquisition Proposal, including any material changes to the timing, amount or form of consideration, conditionality or other material terms of (or any other material developments with respect to) any Company Acquisition Proposal, request, or inquiry including by promptly, and in any event no later than forty-eight (48) hours after receipt by the Company or any of its Representatives, providing to Parent copies of any additional or revised written proposals, requests, inquiries, draft agreements and all draft or executed financing commitments and related material documentation. The Company agrees that it and its Representatives will not enter into any agreement with any Person subsequent to the date hereof that prohibits the Company from providing any information or materials to Parent in accordance with, or otherwise complying with, this Section 4.7.
(d) Except as set forth in this Section 4.7(d), the Board shall not make any Change in Recommendation or enter into (or permit any Company Subsidiary to enter into) a Company Acquisition Agreement.
(i) Notwithstanding anything to the contrary in this Agreement but provided that the Company shall at all times be in compliance with Section 4.7(a), at any time prior to the receipt of the Required Company Vote, the Board may, in response to a Superior Proposal, make a Change in Recommendation or enter into (or permit any Company Subsidiary to enter into) a Company Acquisition Agreement if, (i) the Board, prior to effecting the Change in Recommendation, provides Parent five (5) Business Days prior written notice of its intention to take such action, which notice shall include a description in reasonable detail of such Superior Proposal, (ii) the Company is and remains in compliance with this Section 4.7 during the five (5) Business Days following such written notice, the Board and, if requested by Parent, its Representatives have negotiated in good faith with Parent regarding any revisions to the terms and conditions of the transactions contemplated by this Agreement, including the Merger; and (iii) at the end of the five (5) Business Day period described in the foregoing clause (ii), the Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement which Parent has proposed), that such Company Acquisition Proposal (if any) continues to constitute a Superior Proposal and the failure to make a Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. Any material change to the terms, facts and circumstances relating to the Superior Proposal will be deemed to be a new Superior Proposal, as applicable, for purposes of this Section 4.7 and the Company shall be required to comply again with the requirements of this Section 4.7(d), except that references to “five (5) Business Days” shall be deemed to be references to “two (2) Business Days.”
(ii) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Required Company Vote, the Board may make a Change in Recommendation in response to a Company Intervening Event (a “Company Intervening Event Change in Recommendation”) if the Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, that the failure to make a Company Intervening Event Change in Recommendation would be inconsistent with the Board’s fiduciary duties under applicable Law, provided, that: (A) Parent shall have received written notice from the Company (a “Company Notice of Intervening Event Change in Recommendation”) of the Company’s intention to make a Company Intervening Event Change in Recommendation at least five (5) Business Days prior to the taking of such action by the Company, which notice shall specify the applicable Company Intervening Event in reasonable detail, (B) during such period and prior to making a Company Intervening Event Change in Recommendation, if requested by Parent, the Company and its Representatives shall have negotiated in good faith with Parent and its Representatives regarding any revisions or adjustments proposed by Parent to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Merger and not make such Company Intervening Event Change in Recommendation and (C) the Company may make a Company Intervening Event Change in Recommendation only if the Board, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that Parent shall have, prior to the expiration of the 5-Business Day period, offered in writing in a manner that would form a binding contract if accepted by the Company, continues to determine in good faith that such Company Intervening Event exists and that the failure to make a Company Intervening Event Change in Recommendation would, after consultation with the Company’s outside legal counsel and financial advisors, be inconsistent with its fiduciary duties under applicable Law.
(iii) For purposes of this Agreement, (A) “Company Acquisition Proposal” means any unsolicited offer or proposal made by a Person or group at any time after the date hereof that would result in such Person or group acquiring, directly or indirectly, beneficial ownership (with respect to securities, within the meaning of Section 13(d) of the Exchange Act) of at least fifteen percent (15%) (based on the fair market value thereof) of the Assets of, equity interest in, or business of, the Company and the Company Subsidiaries, taken as a SPAC whole, pursuant to a merger, reorganization, recapitalization, consolidation, license, share exchange, business combination, tender offer, sale of shares of capital stock, sale of assets or other similar transaction, including any single or multi-step transaction or series of related transactions, in each case other than the Merger, (B) “Superior Proposal” means any Company Acquisition Proposal that if consummated would result in a Person or group owning, directly or indirectly, (x) fifty percent (50%) or more of all classes of outstanding equity securities of the Company or of the surviving entity in a merger involving the Company or the resulting direct or indirect parent of the Company or such surviving entity or (y) fifty percent (50%) or more (based on the fair market value thereof) of the Assets of the Company and the Company Subsidiaries (including capital stock of the Company Subsidiaries), taken as a whole, that the Board determines in good faith (after consultation with its outside legal counsel and financial advisors) is superior, from a financial point of view, to this Agreement and the Merger, taking into account all financial, legal, regulatory and other aspects of such proposal and of this Agreement (including the relative risks of non-consummation and any changes to the terms of this Agreement proposed by Parent to the Company), and (C) a “Company Intervening Event” shall mean any fact, circumstance, occurrence, event, development, change or condition or combination thereof relating directly to the Company, its Assets or its operations that was not known or reasonably foreseeable to the Board as of the date of this Agreement (or if known, the consequences or magnitude of which were not known or reasonably foreseeable) other than (i) changes in the market price or trading volume of the shares of Company Common Stock (however, the underlying reasons for such changes may constitute a Company Intervening Event), (ii) the timing of any consents, registrations, Permits or clearances required to be obtained prior to the Effective Time by the Company or Parent or any of their respective Subsidiaries from any Governmental Entity in connection with this Agreement and the consummation of the Merger and the other transactions contemplated hereby, (iii) a Company Acquisition Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal, or the consequences thereof, (iv) the fact that the Company exceeds any internal projections, budgets or forecasts or third-party revenue or earnings predictions or other analyst expectations, projections, forecasts or budgets for any period (however, the underlying reasons for such events may constitute a Company Intervening Event), (v) matters set forth in clauses (A) through (D) of the definition of Company Material Adverse Effect and (vi) events set forth on Section 4.7(d)(iii) of the Company Disclosure Schedule.
Appears in 2 contracts
Sources: Merger Agreement (Opko Health, Inc.), Merger Agreement (Bio Reference Laboratories Inc)
No Solicitation. From the date hereof of this Agreement until the Merger earlier of the Closing Date or, if earlier, or the date of the termination of this Agreement in accordance with pursuant to Article XIIX, SPAC the Sellers shall not, and nor shall direct either of them authorize or permit any officer, director, employee, investment banker, attorney or other adviser or representative of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not Sellers to, directly or indirectly : (a) solicit, initiateinitiate or encourage the submission of, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition ProposalProposal (as hereinafter defined), (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC any Acquisition Proposal, or (dc) grant participate in any waiverdiscussions or negotiations regarding, amendment or release under furnish to any confidentiality agreement Person any information for the purpose of facilitating the making of, or otherwise knowingly take any other action to facilitate any such inquiriesinquiries or the making of, proposals, discussionsany proposal that constitutes, or negotiations or may reasonably be expected to lead to, any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From The Sellers shall promptly advise Purchaser of any Acquisition Proposal and after any inquiries with respect to any Acquisition Proposal. For purposes of this Section 7.5, “Acquisition Proposal” means any proposal for a merger or other business combination involving Sellers, the date hereofBusiness or the Purchased Assets or any proposal or offer to acquire in any manner, SPAC shalldirectly or indirectly, and shall direct an equity interest in Sellers, any voting securities of Sellers, a substantial portion of the assets of Sellers, the Business or the Purchased Assets (but not including proposals for sales of inventory in the Ordinary Course of Business); provided, that nothing in this Section 7.5 will prohibit Sellers or their Affiliates from taking any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) actions described in this Section 7.5 with respect to a SPAC Acquisition Proposalany actual or proposed change of control transaction involving ChromaDex Corporation where any Person would acquire all or substantially all of the assets of ChromaDex Corporation or more than fifty percent (50%) of the common stock of ChromaDex Corporation.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (ChromaDex Corp.)
No Solicitation. (a) The Company shall, and shall cause its Subsidiaries and their representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person with respect to a Takeover Proposal and shall seek to have returned to the Company any confidential information that has been provided in any such activities, discussions or negotiations. From the date hereof until the Merger Closing Date or, if earlierhereof, the termination of this Agreement in accordance with Article XII, SPAC Company shall not, and nor shall direct it permit any of the Sponsor and its controlled Affiliates and Subsidiaries to, nor shall it authorize or permit any of its and their respective officers, directors and Representatives not directors, or employees or any Affiliate, investment banker, financial advisor, attorney, accountant, or any other representative retained by it or any of its Subsidiaries to, directly or indirectly indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or take any other action intended to facilitate or encourage, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal, (ii) conduct, participate, or engage in any discussions or negotiations or provide any non-public information or data to any Person, regarding any Takeover Proposal, (iii) approve, endorse, recommend, make or authorize any public statement, recommendation or solicitation in support of any Takeover Proposal or (iv) approve any transaction (other than the transactions contemplated hereby) pursuant to which any Person other than Parent, Merger Sub or any Subsidiary of Parent would become an “interested shareholder” under, Section 33-844 of the CBCA or (v) terminate, amend or waive any material rights under (or fail to take commercially reasonable steps to enforce rights under) any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any other Person (other than Parent, Merger Sub or any Subsidiary of Parent) except as permitted in Section 5.1(a)(xiv); provided, however, that following the receipt of an unsolicited Superior Proposal or a bona fide written unsolicited Takeover Proposal which the Board determines in good faith, after consultation with its outside financial advisor and outside legal counsel and after taking into account the legal, financial, financing and other aspects of such bona fide written unsolicited Takeover Proposal, that such Takeover Proposal is reasonably likely to result in a Superior Proposal made on or after the date hereof but prior to the date of the Special Meeting, in circumstances not otherwise involving a breach of this Agreement, the Company may, in response to such Superior Proposal or such Takeover Proposal and subject to compliance with Section 5.2(b) and Section 5.2(c), (A) request information from the Person making such Superior Proposal or such Takeover Proposal for the purpose of the Board informing itself about the Superior Proposal or Takeover Proposal that has been made and the Person that made it, (B) furnish information with respect to the Company to the Person making such Superior Proposal or such Takeover Proposal pursuant to a confidentiality agreement, provided that (1) such confidentiality agreement contains substantially the same terms as (or terms no less favorable to the Company) than those contained in the Confidentiality Agreement dated as of June 16, 2014, between Parent and the Company (as it may be amended, the “Confidentiality Agreement”) and (2) the Company advises Parent of all such nonpublic information delivered to such Person concurrently with its delivery to the requesting Person, and (C) participate in negotiations with such Person regarding such Superior Proposal or such Takeover Proposal; provided further, that the actions described in clauses (B) and (C) of the immediately preceding proviso may be taken only on or before the date the Company Shareholder Approval is obtained. It is agreed that any violation of the restrictions set forth in the preceding sentence by any officer, director, investment banker, attorney, or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.2(a) by the Company.
(b) Except as expressly permitted in this Section 5.2(b), neither the Board nor any committee thereof shall, directly or indirectly, (i) withdraw, qualify, or modify, or propose publicly to withdraw, qualify, or modify, in a manner adverse to Parent, the approval, determination of advisability, or recommendation by the Board or any such committee of this Agreement, the Merger, and the other transactions contemplated hereby, (ii) approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, any Takeover Proposal, (iii) in the event of a tender offer or exchange offer for any outstanding Company Common Stock, fail to recommend against acceptance of such tender offer or exchange offer by the Company’s shareholders within ten (10) Business Days of the commencement thereof (for the avoidance of doubt, the taking of no position or a neutral position by the Board in respect of the acceptance of any tender offer or exchange offer by its shareholders as of the end of the ten (10) day Business Day period shall constitute a failure to recommend against any such offer); (iv) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a)), or (v) recommend that the Company’s shareholders reject adoption of this Agreement, the Merger or the other transactions contemplated hereby (any action described in clauses (i)-(v) above being referred to as a “Change of Recommendation”). Notwithstanding the foregoing, the Board may, prior to the date of the Special Meeting, and subject to compliance with all of the requirements of this Section 5.2(b) and Sections 5.2(a), 5.2(c) and 5.2(d), (xx) withdraw or modify its approval, determination of advisability, or recommendation of this Agreement, the Merger, and the other transactions contemplated hereby or (yy) determine to be advisable or recommend a Superior Proposal, if in either case the Board determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the Company’s shareholders under applicable law, either (A) in response to a Superior Proposal that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of this Agreement, after considering applicable provisions of state law and after consultation with outside counsel, or (B) based upon a material development or change that impacts the Company that was neither known to, nor reasonably foreseeable by, the Board or management of the Company or any of its Subsidiaries as of or prior to the date hereof (such material development or change in circumstances, an “Intervening Event”); provided that (a) solicitin no event shall the receipt, initiateexistence or terms of a Takeover Proposal constitute an Intervening Event and (b) any effect resulting from any of the Changes specified in Section 3.1(b)(ii)(1) through (11) shall not be considered when determining whether an Intervening Effect shall have occurred.
(c) The Company may take the actions described in Section 5.2(b)(xx) and (yy) only after (i) providing Parent prompt written notice (within 24 hours of receipt) advising Parent that the Board has received a Superior Proposal or that an Intervening Event has occurred, such notice also specifying, in the case of a Superior Proposal, the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal (unless identifying the Person would violate an obligation of confidentiality), and in the case of an Intervening Event, a reasonably detailed description of the Intervening Event, and (ii) Parent does not provide within five (5) Business Days of receipt of the written notice from the Company of such Superior Proposal or Intervening Event an offer that the Company Board determines in good faith, after consultation with its outside counsel and financial advisor, in the case of a Superior Proposal, is at least as favorable from a financial point of view to the Company’s shareholders (taking into account all the terms and conditions of such offer and this Agreement that the Board determines in good faith to be relevant), or pursue in the case of an Intervening Event, obviates the need for the Company to take the actions described in Section 5.2(b)(xx) and (yy). In the event Parent’s offer (as described in the preceding sentence) is determined by the Company, in the case of a Superior Proposal, to be at least as favorable from a financial point of view to the Company’s shareholders, or in the case of an Intervening Event, to obviate the need for the Company to take the actions described in Section 5.2(b)(xx) and (yy), then this Agreement shall be deemed to be amended in accordance with the terms of that offer, Company shall terminate such other discussions, and (subject to the terms and conditions of this Agreement) take any and all necessary actions to consummate the Merger.
(d) In addition to the obligations of the Company set forth in Section 5.2(a) and Section 5.2(b), the Company shall promptly (and in no event later than one (1) Business Day after receipt of any Takeover Proposal) advise Parent in writing of (i) any inquiry or indication of interest that could reasonably be expected to lead to a Takeover Proposal, (ii) any request for confidential information in connection with a Takeover Proposal, (iii) any Takeover Proposal, including a Superior Proposal, (iv) the Board’s determination that any Takeover Proposal is reasonably likely to result in a Superior Proposal, (v) the material terms and conditions of such inquiry, indication of interest, proposal request for confidential information or offer relating to an SPAC Acquisition any Takeover Proposal, (bvi) participate in the identity of the Person making such request or continue such Takeover Proposal (unless identifying the Person would violate an obligation of confidentiality), and (vii) any discussions requests made by the Company for information about the Takeover Proposal or negotiations with any third-party the Person that made it. The Company shall keep Parent fully informed with respect toto the status of any such inquiry, or furnish or make availableindication of interest, any information concerning SPAC to any third party relating to an SPAC Acquisition request for confidential information, Takeover Proposal, or provide any significant developments in respect thereof.
(e) Nothing contained in this Section 5.2 shall prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any third-party access disclosure to the businessesCompany’s shareholders; provided, propertieshowever, assets neither the Company nor the Board or personnel of SPACany committee thereof shall, except as in each case for the purpose of encouraging accordance with Section 5.2(b), withdraw or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementmodify, or any letter of intentpropose publicly to withdraw or modify, memorandum of understanding its approval, determination or agreement in principlerecommendation or approve, determine to be advisable, or any other agreement with respect to an SPAC Acquisition Proposalrecommend, or (d) grant any waiverpropose publicly to approve, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussionsdetermine to be advisable, or negotiations or any effort or attempt by any Person to makerecommend, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Takeover Proposal.
(f) For purposes of this Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Teledyne Technologies Inc), Merger Agreement (Bolt Technology Corp)
No Solicitation. (a) From and after the date hereof of this Agreement until the Merger Closing Date or, if earlier, earlier of the termination of this Agreement in accordance with Article XIIor the Effective Time, SPAC Target shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly indirectly, through any officer, director, employee, affiliate, agent or representative, (ai) solicit, initiate, seek, entertain, or pursue knowingly encourage or support any inquiryinquiries or proposals that constitute, indication of interestor could reasonably be expected to lead to, a proposal or offer relating for a merger, consolidation, sale of any material portion of assets, sale of shares of capital stock of Target (including without limitation by way of a tender offer) constituting more than 10% of the total outstanding voting securities of Target (excluding sales permitted pursuant to Section 5.1), other than the transactions contemplated by this Agreement (any of such proposals or offers being referred to in this Agreement as an SPAC "Acquisition Proposal"), (bii) engage or participate in negotiations or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalconcerning, or provide any non-public information to any third-party access to the businessesperson or entity relating to, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (diii) grant agree to, approve or recommend any waiverAcquisition Proposal; provided, amendment however, that nothing -------- ------- contained in this Agreement shall prevent Target or release its Board of Directors from (A) providing non-public information to, or engaging or participating in discussions or negotiations with, any person or entity in connection with an unsolicited bona fide written Acquisition Proposal by such person or entity (including a new and unsolicited Acquisition Proposal received by Target after the execution of this Agreement from a person or entity whose initial contact with Target may have been solicited by Target prior to the execution of this Agreement) or recommending such an unsolicited bona fide written Acquisition Proposal to the stockholders of Target, if and only to the extent that (1) the Board of Directors of Target determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal would, if consummated, result in a transaction more favorable to Target's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal") and that the party making such Superior Proposal has the financial means, or the ability to obtain the necessary financing, to conclude such transaction, (2) the Board of Directors of Target determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would create a substantial risk of liability for breach of its fiduciary duties to Target's stockholders under any applicable law and (3) prior to furnishing such non-public information to such person or entity, such Board of Directors receives from such person or entity an executed confidentiality agreement with terms no less favorable to Target than those contained in the nondisclosure letter agreements dated October 28, 1997 between Acquirer and Target (the "Confidentiality Agreements"); or otherwise knowingly facilitate (B) complying with Rules 14d-9 or 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or making any such inquiriesdisclosure to Target's stockholders if, proposalsin the good faith judgment of the Board of Directors at Target (after consultation with its outside legal counsel), discussionsfailure to do so would be inconsistent with any law, rule, regulation or duty applicable to Target or its Board of Directors.
(b) Target shall notify Acquirer no later than 24 hours after receipt by Target (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the properties, books or records of Target by any person or entity that informs Target that it is considering making, or negotiations or any effort or attempt by any Person to makehas made, an SPAC Acquisition Proposal. From Such notice shall be made orally and after the date hereof, SPAC shall, in writing and shall direct any indicate in reasonable detail the identity of the Sponsors offeror and its controlled Affiliates the terms and its and their respective officersconditions of such proposal, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalinquiry or contact.
Appears in 2 contracts
Sources: Merger Agreement (Borland International Inc /De/), Merger Agreement (Borland International Inc /De/)
No Solicitation. From (a) The Company and its Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal.
(b) At all times during the date hereof period commencing with the execution and delivery of this Agreement and continuing until the Merger Closing Date or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Article XIIVIII hereof and the Effective Time, SPAC the Company and its Subsidiaries shall not, and nor shall direct they authorize or permit any of the Sponsor and its controlled Affiliates and its and their respective officersdirectors, directors and Representatives not officers or other employees, controlled affiliates, or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly indirectly, (ai) solicit, initiate, knowingly encourage, or pursue any inquiryinduce the making, indication of interestsubmission or announcement of, proposal or offer relating to an SPAC Acquisition Proposal, (bii) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub), or take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes or could lead to an Acquisition Proposal, (iii) participate or engage in or continue any discussions or negotiations with any third-party Person with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, (iv) approve, endorse or provide to any third-party access to the businessesrecommend an Acquisition Proposal, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cv) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or other Contract contemplating or otherwise relating to an Acquisition Transaction or (vi) terminate, amend or waive any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than Parent); provided, however, that notwithstanding the foregoing, prior to the receipt of the Requisite Stockholder Approval, the Company Board may, directly or indirectly through advisors, agents or other intermediaries, subject to the Company’s compliance with the provisions of this Section 6.1, (A) engage or participate in principlediscussions or negotiations with any Person that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board reasonably determines in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal and/or (B) furnish to any Person that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board reasonably determines in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal any 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 in the case of any action taken pursuant to the foregoing clauses (A) or (B), (1) none of the Company, any of its Subsidiaries or any representative of the Company or its Subsidiaries shall have breached or violated the terms of this Section 6.1, (2) the Company Board reasonably determines in good faith (after consultation with outside legal counsel) that such action is required in order to comply with its fiduciary duties to the Company Stockholders under Delaware Law, (3) 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 Person, the Company gives Parent written notice of the identity of such Person and the material terms and conditions of such Acquisition Proposal (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof) and of the Company’s intention to engage or participate in discussions or negotiations with, or furnish non-public information to, such Person and (4) 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 by the Company to Parent).
(c) Without limiting the generality of the foregoing, Parent, Merger Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 6.1 by any directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other agreement with respect advisor or representative retained by the Company or any of its Subsidiaries shall be deemed to an SPAC be a breach of this Section 6.1 by the Company.
(d) In addition to the obligations of the Company set forth in Sections 6.1(a) and (b) hereof, the Company shall promptly, and in all cases within twenty four (24) hours of its receipt, advise Parent orally and in writing of (i) any Acquisition Proposal, (ii) any request for information that could lead to an Acquisition Proposal or (diii) grant any waiverinquiry with respect to, amendment or release under which could lead to, any confidentiality agreement Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or otherwise knowingly facilitate inquiry, and the identity of the Person or group making any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From , request or inquiry.
(e) The Company shall keep Parent promptly and after the date hereof, SPAC shall, and shall direct any reasonably informed of the Sponsors status and its controlled Affiliates material terms and its and their respective officersconditions (including all amendments or proposed amendments) of any such Acquisition Proposal, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than request or inquiry. In addition to the Group Companiesforegoing, the Shareholders and their RepresentativesCompany shall provide Parent with at least forty eight (48) with respect hours prior written notice of a meeting of the Company Board at which the Company Board is reasonably expected to a SPAC consider an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Micro Linear Corp /Ca/), Merger Agreement (Sirenza Microdevices Inc)
No Solicitation. From (a) The Company will immediately cease any existing discussions or negotiations with any third parties conducted prior to the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC respect to any Acquisition Proposal (as defined below). The Company shall not, and shall direct directly or indirectly, through any officer, director, employee, representative or agent, or any of the Sponsor and its controlled Affiliates and its and their respective officerssubsidiaries, directors and Representatives not to, directly or indirectly otherwise (ai) solicit, initiate, continue or pursue encourage any inquiryinquiries, indication of interestproposals or offers that constitute, or could reasonably be expected to lead to, a proposal or offer relating 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), liquidation, reorganization or similar transactions involving the Company or any of its subsidiaries or divisions, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an SPAC "Acquisition Proposal"), (bii) participate solicit, initiate, continue or engage in negotiations or continue discussions concerning, or provide any discussions information or negotiations with data to any third-party with respect person or entity relating to, or furnish or make available, otherwise cooperate in any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalway with, or provide to any third-party access to the businesses, properties, assets assist or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementparticipate in, or facilitate or encourage any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (diii) grant agree to, approve or recommend any waiverAcquisition Proposal; provided, that nothing contained in this Section 4.1 shall prevent the Company from, prior to the acceptance for payment by the Purchaser of Shares pursuant to the Offer, furnishing non-public information to, or entering into discussions or negotiations with, any person or entity in connection with an unsolicited Acquisition Proposal by such person or entity (including a new and unsolicited Acquisition Proposal received by the Company after the execution of this Agreement from a person or entity whose initial contact with the Company may have been solicited by the Company prior to the execution of this Agreement), and may recommend such an unsolicited bona fide written Acquisition Proposal to the shareholders of the Company, if and only to the extent that (i) the Board of Directors of the Company determines in good faith (after consultation with and based upon the advice of its financial advisor and considering the affect of such Acquisition Proposal upon the employees, customers and the community) that such Acquisition Proposal would, if consummated, result in a transaction more favorable to the shareholders of the Company than the Offer and Merger and that the person or entity making such Acquisition Proposal has the financial means, or the ability to obtain the necessary financing, to conclude such transaction (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), (ii) the Board of Directors of the Company determines in good faith (after consultation with and based upon the advice of its outside legal counsel) that the failure to take such action would be inconsistent with the fiduciary duties of such Board of Directors to its shareholders under applicable law, and (iii) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such person or entity, such Board of Directors receives from such person or entity an executed confidentiality agreement with confidentiality provisions not materially less favorable to the Company than those contained in the Confidentiality Agreement.
(b) The Company agrees not to release any third party from, and to enforce strictly any confidentiality or standstill agreement to which the Company and such third party are parties. The Company shall notify Parent immediately (and in no event later than 24 hours) after receipt by the Company of any Acquisition Proposal or amendment or release under supplement thereto or any confidentiality agreement request for non-public information in connection with an Acquisition Proposal or otherwise knowingly facilitate for access to the properties, books or records of the Company by any such inquiries, proposals, discussionsperson or entity that informs the Company that it is considering making, or negotiations or any effort or attempt by any Person to makehas made, an SPAC Acquisition Proposal. From Such notice shall be made orally and after the date hereof, SPAC shall, in writing and shall direct any indicate in reasonable detail the identity of the Sponsors offeror and its controlled Affiliates shall be accompanied by a copy of any written documentation received by the Company in connection with such Acquisition Proposal and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalfinancing related thereto.
Appears in 2 contracts
Sources: Merger Agreement (Peerless Industrial Group Inc), Merger Agreement (R B Capital Corp)
No Solicitation. From During the date hereof until the Merger Closing Date orVoting Period, if earlier, the termination of this Agreement in accordance with Article XII, SPAC each Stockholder hereby agrees that it shall not, and shall direct cause any of the Sponsor and its controlled Affiliates and its and their respective directors, officers, directors employees, controlled affiliates, accountants, consultants, legal counsel, investment bankers, advisors, agents and Representatives other representatives (collectively, “Representatives”) of such Stockholder not to, directly or indirectly (ai) initiate, solicit, initiate, knowingly facilitate or pursue knowingly encourage any inquiry, indication of interest, proposal or offer relating that constitutes or would reasonably be expected to an SPAC lead to a Company Acquisition Proposal, (b) participate Proposal or engage in or continue any discussions or negotiations with any third-party with respect tothereto, (ii) approve or recommend, or furnish publicly propose to approve or make availablerecommend, any information concerning SPAC to any third party relating to an SPAC Company Acquisition Proposal, (iii) enter into any letter of intent or provide other similar agreement relating to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (civ) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement resolve or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect agree to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct do any of the Sponsors foregoing; provided that Section 1.4(a)(i) shall not restrict a Stockholder from taking any action or doing anything that the Company is permitted to do in accordance with the terms of Section 5.3 of the Merger Agreement. Notwithstanding the foregoing, each Stockholder may (and may permit its controlled Affiliates and its and their respective officers, directors and its Affiliates’ Representatives to, immediately cease and terminate all ) participate in discussions and negotiations with the Company and/or any Persons Person making a Company Acquisition Proposal (other than the Group Companies, the Shareholders and or their respective Representatives) with respect to such Company Acquisition Proposal to the extent: (x) the Company or the Company Board is engaging in discussions or negotiations with such Person in accordance with Section 5.3 of the Merger Agreement; and (y) such Stockholder’s negotiations and discussions are in conjunction with and ancillary to the Company’s or the Company Board’s discussions and negotiations with such Person making a SPAC Company Acquisition Proposal, solely in the case of (y), subject to promptly and, in any event, within twenty-four (24) hours of receipt thereof, notifying Parent of the status and material details thereof (including copies of any written documentation that is material to such Company Acquisition Proposal).
Appears in 2 contracts
Sources: Voting Agreement (William Lyon Homes), Voting Agreement (Taylor Morrison Home Corp)
No Solicitation. (a) From the date hereof until of this Agreement and ending on the Merger earlier of the Closing Date or, if earlier, and the valid termination of this Agreement in accordance with Article XIISection 9.1, SPAC the Company shall not, and shall cause the Company Subsidiaries not to and shall direct its and their respective Representatives acting on its or their behalf not to, directly or indirectly, (i) enter into, solicit, initiate, knowingly facilitate, or continue any discussions or negotiations with, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning any sale of any material assets of the Company or any of the outstanding capital stock of the Company or any conversion (other than the Preferred Stock Conversion), consolidation, merger, business combination, liquidation, dissolution or similar transaction involving the Company or any of the Company Subsidiaries other than with Acquiror and its Representatives (an “Alternative Transaction”), (ii) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of the Company Subsidiaries, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (iv) approve, endorse, recommend, execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer that could reasonably be expected to lead to an Alternative Transaction, (v) commence, continue or renew any due diligence investigation regarding any Alternative Transaction, or (vi) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives acting on its behalf to take any such action. The Company shall, and shall cause the Company Subsidiaries to and shall direct its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Alternative Transaction to return or destroy all confidential information furnished to such person by or on behalf of it pursuant to such agreement prior to the date hereof.
(b) From the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, the Company shall notify Acquiror promptly after receipt by the Company, the Company Subsidiaries or any of their respective Representatives of any (i) inquiry or proposal with respect to an Alternative Transaction, (ii) inquiry that would reasonably be expected to lead to an Alternative Transaction or (iii) request for non-public information relating to the Company or any of the Company Subsidiaries, or for access to the business, properties, assets, personnel, books or records of the Company or any of the Company Subsidiaries by any third party, in each case that is related to an inquiry or proposal with respect to an Alternative Transaction.
(c) If the Company or any of the Company Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time from the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, then the Company shall promptly notify such person in writing that the Company is subject to an exclusivity agreement with respect to the Alternative Transaction that prohibits them from considering such inquiry or proposal.
(d) From the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, each of Acquiror, First Merger Sub and Second Merger Sub shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives acting on their behalf not to, directly or indirectly indirectly, (ai) enter into, solicit, initiate, or pursue any inquiryknowingly facilitate, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in knowingly encourage or continue any discussions or negotiations with with, or knowingly encourage or respond to any third-party with respect inquiries or proposals by, or participate in any negotiations with, or provide any information to, or furnish or make availableotherwise cooperate in any way with, any information person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning SPAC to any third party relating to an SPAC Acquisition Proposalmerger, consolidation, or provide to any third-party access to the businesses, properties, acquisition of stock or assets or personnel of SPACany other business combination involving Acquiror and any other corporation, in each case for partnership or other business organization other than the purpose of encouraging Company and Company Subsidiaries (an “Acquiror Alternative Transaction”), (ii) approve, endorse or facilitating an SPAC Acquisition Proposal recommend, or propose publicly to approve, endorse or recommend, any Acquiror Alternative Transaction, (ciii) approve, endorse, recommend, execute or enter into any binding understandingagreement in principle, binding arrangement, acquisition confidentiality agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or agreement in principle, other written arrangement relating to any Acquiror Alternative Transaction or any other agreement with respect proposal or offer that could reasonably be expected to lead to an SPAC Acquisition ProposalAcquiror Alternative Transaction, (iv) commence, continue or renew any due diligence investigation regarding any Acquiror Alternative Transaction, or (dv) grant resolve or agree to do any waiver, amendment or release under any confidentiality agreement of the foregoing or otherwise knowingly facilitate authorize or permit any of its Representatives acting on its behalf to take any such inquiriesaction. Each of Acquiror, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From First Merger Sub and after the date hereof, SPAC Second Merger Sub shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors affiliates and Representatives acting on their behalf to, immediately cease any and terminate all existing discussions and or negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) person conducted heretofore with respect to any Acquiror Alternative Transaction. The parties agree that any violation of the restrictions set forth in this Section 7.1 by Acquiror, First Merger Sub or Second Merger Sub or their respective affiliates or Representatives shall be deemed to be a SPAC Acquisition Proposalbreach of this Section 7.1 by Acquiror, First Merger Sub and Second Merger Sub.
(e) From the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, Acquiror shall notify the Company promptly after receipt by Acquiror or any of its Representatives of any (i) inquiry or proposal with respect to an Acquiror Alternative Transaction, (ii) inquiry that would reasonably be expected to lead to an Acquiror Alternative Transaction or (iii) request for non-public information relating to Acquiror, or for access to the business, properties, assets, personnel, books or records of Acquiror by any third party, in each case that is related to an inquiry or proposal with respect to Alternative Transaction.
(f) If Acquiror or any of its Representatives receives any inquiry or proposal with respect to an Acquiror Alternative Transaction at any time from the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, then Acquiror shall promptly notify such person in writing that Acquiror is subject to an exclusivity agreement with respect to the Alternative Transaction that prohibits them from considering such inquiry or proposal.
Appears in 2 contracts
Sources: Business Combination Agreement (Jet Token Inc.), Business Combination Agreement (Oxbridge Acquisition Corp.)
No Solicitation. From the date hereof until the Merger Closing Date or(a) The Company agrees that it shall immediately cease and cause to be terminated all discussions, negotiations and communications, if earlierany, with any Persons with respect to any Acquisition Proposal and shall use its reasonable best efforts to cause any such Person (and its agents and advisors) in possession of confidential information about the termination Company that was furnished by or on behalf of this Agreement in accordance with Article XII, SPAC the Company to return or destroy all such information. The Company shall not, and it shall direct not authorize or permit any of the Sponsor and its controlled Affiliates and Subsidiaries, or any of its and their respective or its Subsidiaries’ officers, directors and Representatives not directors, employees, representatives, consultants, investment bankers, attorneys, accountants or other agents (collectively, “Representatives”) to, directly or indirectly (ai) solicit, initiate, solicit or pursue knowingly encourage (including by way of furnishing non-public information or assistance), or knowingly induce, or knowingly take any action to facilitate the making of, any inquiry, indication of interest, offer or proposal which constitutes or offer relating would reasonably be expected to an SPAC lead to any Acquisition Proposal, (bii) enter into, continue or otherwise participate in or continue any discussions or negotiations with with, furnish any thirdnon-party with respect public information relating to the Company or its Subsidiaries to, or furnish otherwise cooperate in any way with any Person (other than Parent or make availableany of its Affiliates or Representatives) that is seeking to make, or has made, an Acquisition Proposal, (iii) fail to make, or withdraw or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to an Acquisition Proposal shall be considered an adverse modification), recommend, adopt or approve, or publicly propose to recommend, adopt or approve, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide publicly take any action or make any public statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant (other than to Parent or any third-party access to the businessesof its Affiliates or Representatives) any waiver or release under any confidentiality, properties, assets standstill or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition similar agreement, merger agreement or similar definitive agreement(v) make, or participate in, whether alone or in concert with others, any letter “solicitation” (as such term is used in the rules of intent, memorandum the SEC) of understanding proxies or agreement consents to vote any securities of the Company in principle, or favor of any other agreement with respect to an SPAC Acquisition Proposal, or (dvi) grant enter into any waivermerger agreement, amendment or release under any confidentiality letter of intent, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to or any understanding or agreement contemplating or otherwise knowingly facilitate any such inquiries, proposals, discussionsrelating to, or negotiations that is intended to or would reasonably be expected to lead to, any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From The Company shall promptly (and after in any event within 24 hours) notify Parent if any proposals are received by, any non-public information is requested from, or any negotiations or discussions are sought to be initiated or continued with, the date hereofCompany or any Company Representative, SPAC shallin each case, and in connection with an Acquisition Proposal or the possibility or consideration of making an Acquisition Proposal, which notice shall direct any identify the name of the Sponsors Person making such proposal or request or seeking such negotiations or discussions and include copies of all correspondence and written materials provided to the Company or any Company Representative that describe the terms and conditions of any proposal or request and a reasonable description of any terms and conditions of any such proposal or request that were communicated orally.
(b) Notwithstanding Section 5.2(a), prior to the receipt of Company Stockholder Approval, the Company may, subject to compliance with this Section 5.2, furnish non-public information concerning its controlled Affiliates business, properties or assets to any Person pursuant to a confidentiality agreement (a copy of which shall be provided to Parent promptly after its execution) with terms no less favorable to the Company than those contained in the Confidentiality Agreements, dated March 11, 2011 and its March 16, 2011, each entered into between HPT and their respective officersthe Company (together, directors the “Confidentiality Agreement”) and Representatives to, immediately cease may negotiate and terminate all participate in discussions and negotiations with such Person concerning an Acquisition Proposal if, but only if, (i) the Company has received on an unsolicited basis, a bona fide written Acquisition Proposal from such Person, (ii) the Board of Directors of the Company determines in good faith, after considering the advice of a nationally recognized investment banking firm and outside legal counsel that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after considering the advice of outside legal counsel to the Company, that the failure to provide such information or to engage in such discussions or negotiations would be inconsistent with the Board of Directors’ fiduciary duties to the Company’s stockholders under applicable Law, and (iv) there has not been any Persons material breach of this Section 5.2 by the Company or any of its Representatives.
(c) Prior to furnishing any Person with information or entering into negotiations or discussions pursuant to Section 5.2(b), the Company shall provide Parent at least 24 hours prior written notice of its intention to provide such information or enter into such negotiations or discussions, which notice shall include the name of the Person to whom it intends to provide such information or enter into such negotiations or discussions. The Company shall promptly provide to Parent any non-public information regarding the Company provided to any other Person which was not previously provided to Parent, such additional information to be provided no later than the Group Companiesdate of provision of such information to such other Person. The Company shall promptly keep Parent reasonably informed of the status and details of any Acquisition Proposal (including any material changes in the terms thereof) and promptly deliver copies of all correspondence and written materials provided to the Company or any Company Representative with respect to any Acquisition Proposal (and any subsequent material changes to such terms and conditions thereof) and a reasonable description of any terms and conditions of any Acquisition Proposal that were communicated orally.
(d) Any violation of this Section 5.2 by any of the Company’s Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Agreement by the Company.
(e) Except as set forth in this Section 5.2(e), neither the Board of Directors of the Company nor any committee thereof shall make an Adverse Recommendation Change. Notwithstanding the foregoing, prior to the receipt of Company Stockholder Approval, the Shareholders and their Representatives) Board of Directors of the Company may make an Adverse Recommendation Change with respect to a SPAC Superior Proposal if (i) the Company shall have received a Superior Proposal that did not result from a material breach of this Section 5.2 and provided the notice specified in Section 5.2(c), (ii) the Board of Directors of the Company determines in good faith, after considering the advice of outside legal counsel, that the failure to take such action would be inconsistent with the Board of Directors’ fiduciary duties to the Company’s stockholders under applicable Law, (iii) prior to effecting such Adverse Recommendation Change with respect to such Superior Proposal, the Company has provided Parent four full Business Days prior written notice that the Board of Directors of the Company intends to make an Adverse Recommendation Change as a result of such Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term of such Acquisition Proposal shall require a new written notice to Parent and a new two full Business Day period), (iv) during such period (and any new two full Business Day period required by this Section 5.2(e)) the Company has caused its financial and legal advisors to negotiate with Parent in good faith as to any such adjustments in the terms and conditions of this Agreement proposed by Parent so as to cause such Acquisition Proposal to cease to constitute a Superior Proposal, and (v) following such period(s), the Board of Directors of the Company determines in its good faith judgment (after considering the advice of its financial advisor and outside legal counsel) that, after taking into account any adjustments to the terms and conditions of this Agreement proposed in writing by Parent, the Acquisition Proposal continues to constitute a Superior Proposal. Any such Adverse Recommendation Change or the entry by the Company into any Acquisition Agreement shall not change the approval of the Board of Directors of the Company for purposes of causing or cause any state takeover statute or other state Law to be applicable to the Transactions (including the Merger).
(f) The Company may terminate this Agreement and enter into an agreement with respect to a Superior Proposal (an “Acquisition Agreement”), provided that, prior to any such termination (and with respect to clause (iii) hereof, concurrently with the termination of this Agreement), (i) the Company shall have received a Superior Proposal and provided the notice specified in Section 5.2(c), (ii) the Board of Directors of the Company determines in good faith, after considering the advice of outside legal counsel, that the failure to take such action would be inconsistent with the Board of Directors’ fiduciary duties to the Company’s stockholders under applicable Law, (iii) the Company shall have provided Parent four full Business Days prior written notice (it being understood and agreed that any amendment to the financial terms or any other material term of such Acquisition Proposal shall require a new written notice to Parent and a new two full Business Day period) that it intends to terminate this Agreement pursuant to this Section 5.2(f), identifying the Superior Proposal then determined to be more favorable and the parties thereto and delivering to Parent a copy of the Acquisition Agreement for such Superior Proposal in the form to be entered into, (iv) during such period (and any new two full Business Day period required by this Section 5.2(f)) the Company has caused its financial and legal advisors to negotiate with Parent in good faith as to any such adjustments in the terms and conditions of this Agreement proposed by Parent so as to cause such Acquisition Proposal to cease to constitute a Superior Proposal, (v) following such period(s), the Board of Directors of the Company determines in its good faith judgment (after considering the advice of its financial advisor and outside legal advisor) that, after taking into account any adjustments to the terms and conditions of this Agreement proposed in writing by Parent, the Acquisition Proposal continues to constitute a Superior Proposal, (vi) there has not been any material breach of this Section 5.2 by the Company or any of its Representatives, (vii) the Company shall have delivered to Parent (1) a written notice of termination of this Agreement pursuant to this Section 5.2(f) and (2) a wire transfer of immediately available funds in the amount of the Termination Fee and the Reimbursable Expenses, and (viii) immediately following and conditioned on the payment of the Termination Fee and the Reimbursable Expenses pursuant to subclause (2) above, the Company enters into the Acquisition Agreement with respect to the Superior Proposal for which it has complied with the procedures set forth in this Section 5.2.
(g) The Company shall not take any action to (i) exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 912 of the NYBCL (or any similar provision of any other Law) or otherwise cause such restrictions not to apply or (ii) exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the provisions on “control share acquisitions” contained in any takeover Law or otherwise cause such restrictions not to apply, or agree to do any of the foregoing, in each case unless such actions are taken substantially concurrently with a termination of this Agreement pursuant to Section 5.2(f).
(h) Nothing contained in this Agreement shall prohibit the Company or the Board of Directors of the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making any “stop, look and listen” communication to the Company Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act, if in either case, in the good faith judgment of the Board of Directors of the Company, after considering the advice of outside counsel to the Company, the failure to take such action would be inconsistent with the Board of Directors’ fiduciary duties to the Company’s stockholders under applicable Law.
Appears in 2 contracts
Sources: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
No Solicitation. From the date hereof until the Merger Closing Date or(a) Except as set forth in Section 6.7(b), if earlier, the termination none of this Agreement in accordance with Article XII, SPAC shall notCompany nor any of its Subsidiaries shall, and each of them shall direct any of the Sponsor and cause its controlled Affiliates and its and their respective officers, directors directors, employees, agents, investment bankers, financial advisors, attorneys, accountants and Representatives other retained representatives (each a “Representative”) not to, directly or indirectly (ai) solicit, initiate, encourage, knowingly facilitate (including by way of providing information) or pursue induce any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish the making or make availablecompletion of, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide any inquiry, proposal or offer that is reasonably likely to lead to any third-party access Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or “group” (as such term is defined in Section 13(d) under the businessesExchange Act) any confidential or nonpublic information with respect to or in connection with, propertiesan Acquisition Proposal, assets (iii) take any other action to knowingly facilitate any inquiries or personnel the making of SPACany proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, in each case for the purpose of encouraging (iv) approve, endorse or facilitating an SPAC recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (cv) enter into any binding understandingagreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal (other than any confidentiality agreement required by Section 6.7(b)), binding arrangement, acquisition agreement, merger (vi) enter into any agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principleprinciple requiring, directly or indirectly, Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any other of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.7(a), if Company or any of its Representatives receives an unsolicited bona fide written Acquisition Proposal by any Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) that did not result from or arise in connection with a breach of this Section 6.7 at any time prior to the Company Shareholders’ Meeting that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s financial advisors and outside legal counsel) to constitute or to be reasonably likely to result in a Superior Proposal, Company and its Representatives may take any action described in Section 6.7(a)(ii) above to the extent that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s outside legal counsel), that the failure to take such action would be reasonably likely to violate its fiduciary duties under applicable Law; provided, that, prior to taking any such action, Company has obtained from such Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) an executed confidentiality agreement with respect containing terms substantially similar to, and no less favorable to an SPAC Company than, the terms of the Confidentiality Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Company shall advise Purchaser in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, shall promptly provide to Purchaser a copy of the Acquisition Proposal, request or inquiry (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Acquisition Proposal) and shall keep Purchaser promptly apprised of any related developments, discussions and negotiations (including providing Purchaser with a copy of all material documentation and correspondence relating thereto) on a current basis. Company agrees that it shall concurrently provide to Purchaser any information concerning Company that may be provided (pursuant to Section 6.7(b)) to any other Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) in connection with any Acquisition Proposal which has not previously been provided to Purchaser.
(d) grant Notwithstanding anything herein to the contrary, at any waivertime prior to the Company Shareholders’ Meeting, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiriesthe Board of Directors of Company may withdraw its recommendation of the Merger Agreement, proposalsthereby resulting in a Change in the Company Recommendation, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From if and only if (x) from and after the date hereof, SPAC Company has complied with Sections 6.3 and 6.7, and (y) the Board of Directors of Company has determined in good faith, after consultation with Company’s outside legal counsel, that the taking of such action is reasonably necessary in order for the Board of Directors of Company to comply with its fiduciary duties under applicable Law; provided, that the Board of Directors of Company may not effect a Change in the Company Recommendation unless:
(i) Company shall have received an unsolicited bona fide written Acquisition Proposal and the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by Purchaser;
(ii) Company shall have provided prior written notice to Purchaser at least three business days in advance (the “Notice Period”) of taking such action, which notice shall advise Purchaser that the Board of Directors of Company has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Superior Proposal);
(iii) during the Notice Period, Company shall, and shall direct cause its financial advisors and outside counsel to, negotiate with Purchaser in good faith (to the extent Purchaser desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Purchaser, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, Company shall deliver a new written notice to Purchaser and shall again comply with the requirements of this Section 6.7(d) with respect to such new written notice, except that the Sponsors new Notice Period shall be two business days. In the event the Board of Directors of Company does not make the determination referred to in clause (iv) of this paragraph and thereafter seeks to effect a Change in the Company Recommendation, the procedures referred to above shall apply anew and shall also apply to any subsequent Change in the Company Recommendation.
(e) Company and its controlled Affiliates Subsidiaries shall, and its and shall cause their respective officers, directors and Representatives to, (i) immediately cease and terminate cause to be terminated any and all existing activities, discussions and or negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) conducted heretofore with respect to a SPAC any Acquisition Proposal; (ii) request the prompt return or destruction of all confidential information previously furnished in connection therewith; and (iii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or Company or any of its Subsidiaries or Representatives is a party, and enforce the provisions of any such agreement.
(f) Nothing contained in this Agreement shall prevent Company or its Board of Directors from making any disclosure to Company shareholders if the Board of Directors of Company (after consultation with Company’s outside legal counsel) concludes that its failure to do so would cause it to violate its fiduciary duties under applicable Law; provided, that this Section 6.7(f) will in no way eliminate or modify the effect that any action taken pursuant hereto would otherwise have under this Agreement.
(g) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Emclaire Financial Corp), Merger Agreement (Emclaire Financial Corp)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC The Company and its subsidiaries shall not, and nor shall direct they permit any of the Sponsor and its controlled Affiliates and its and their respective officersofficers and directors (or affiliates of any of such officers or directors), directors and Representatives not tocontrolled affiliates, or employees or any investment banker, attorney, accountant or other advisor or representative retained by (or otherwise working on behalf of) the Company or any of its subsidiaries (collectively, “Representatives”) to directly or indirectly indirectly: (ai) solicit, initiate, knowingly encourage, knowingly facilitate, or pursue induce any inquiryinquiry with respect to, indication or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 5.4(g)(i)), (ii) participate or otherwise engage 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 interestequity security of the Company or any of its subsidiaries or amending, waiving or terminating the Rights Agreement, other than as contemplated by this Agreement, or redeeming any rights under the Rights Agreement, other than as contemplated by this Agreement) to facilitate any inquiries or the making of any proposal that constitutes or offer relating may reasonably be expected to an SPAC lead to, any Acquisition Proposal, (biii) participate engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or continue recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to Section 5.4(d)), or (v) enter into any letter of intent or similar document or any Contract relating to an Acquisition Proposal (other than a confidentiality agreement entered into with a party making an Acquisition Proposal as permitted by Section 5.4(c)(i) below). The Company and its subsidiaries will immediately cease, and will cause its Representatives to immediately cease, any and all existing activities, discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement parties conducted heretofore with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Tanox Inc), Merger Agreement (Genentech Inc)
No Solicitation. From (a) During the date hereof until the Merger Pre-Closing Date or, if earlierPeriod, the termination of this Agreement in accordance with Article XII, SPAC Company shall not, and shall direct any of cause the Sponsor and its controlled Affiliates and its other Acquired Corporations and their respective officers, directors and Representatives not to, directly or indirectly indirectly: (ai) solicit, initiate, or pursue knowingly induce, facilitate or encourage the submission or announcement of any Acquisition Proposal (including by granting any waiver under Section 203 of the DGCL) or any inquiry, indication of interest, proposal or offer relating that could reasonably be expected to lead to an SPAC Acquisition Proposal; (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry, indication of interest, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; (biii) participate or engage in or continue any discussions or negotiations with any third-party Person with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or an inquiry, indication of interest, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; (civ) adopt, approve, recommend, submit to stockholders or declare advisable any Acquisition Proposal; (v) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum term sheet, merger agreement, acquisition agreement, option agreement or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction or modify, amend or waive any provision in any Contract in connection with any Acquisition Proposal; or (vi) release or permit the release during the Pre-Closing Period of understanding any Person from, or waive or permit the waiver of any provision of, or fail to enforce or cause to be enforced, any confidentiality, “standstill”, or similar agreement to which any of the Acquired Corporations is a party; provided, however, that prior to the Offer Acceptance Time, this Section 5.4 shall not prohibit the Company from furnishing information regarding the Acquired Corporations to, or entering into discussions with, any Person (and waiving such Person’s noncompliance with the provisions of any “standstill” agreement to the extent (but only to the extent) necessary to permit such discussions) in response to a bona-fide written Acquisition Proposal that is submitted after the date of this Agreement to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have breached any of the provisions set forth in Section 1.2(c) or this Section 5.4, (2) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and its financial advisor of nationally recognized reputation, that such bona-fide written Acquisition Proposal constitutes a Superior Offer or would reasonably be expected to lead to a Superior Offer and that the failure to take such action would constitute a breach of the fiduciary duties of the Company’s Board of Directors to the Company’s stockholders under applicable Legal Requirements, (3) at least twenty-four (24) hours prior to furnishing any such information to, or entering into discussions with, such Person, Parent receives written notice from the Company of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement in principlea customary form that is no less favorable to the Company than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) (which the Company may negotiate with the Person during the twenty-four (24) hour notice period and enter into during such period or thereafter), and (4) the Company concurrently furnishes all such information to Parent (to the extent such information has not been previously furnished or made available by the Company to Parent or Parent’s Representatives). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any breach of any of the restrictions set forth in the preceding sentence by any Representative of the Company or any other Acquired Corporation, whether or not such Representative is purporting to act on behalf of the Company or any Acquired Corporation, shall be deemed to constitute a breach of this Section 5.4 by the Company. Notwithstanding anything to the contrary contained in this Agreement, the Acquired Corporations and their Representatives may, following receipt of an Acquisition Proposal from any Person, communicate with such Person to the extent necessary to direct such Person to the provisions of this Section 5.4.
(b) During the Pre-Closing Period, the Company shall promptly (and in no event later than twenty-four (24) hours after receipt thereof) advise Parent orally and in writing of any Acquisition Proposal, any inquiry, indication of interest, proposal, offer or request that could reasonably be expected to lead to an Acquisition Proposal or any request for nonpublic information relating to any of the Acquired Corporations, including (A) the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest, proposal, offer or request, (B) a copy of all written materials provided in connection with such Acquisition Proposal, inquiry, indication of interest, proposal, offer or request and (C) a written summary of all material oral communications made by any Person during the Pre-Closing Period. After receipt of the Acquisition Proposal, inquiry, indication of interest or request, the Company shall continue promptly (and in any event within twenty-four (24) hours) to keep Parent informed orally or in writing of the status, terms and pertinent details of any such Acquisition Proposal, inquiry, indication of interest, proposal, offer or request (including by providing prompt notice of all material amendments or proposed material amendments thereto) and shall promptly (and in any event within twenty-four (24) hours) provide to Parent a copy of all written materials subsequently provided in connection with such Acquisition Proposal, inquiry, indication of interest, proposal, offer or request.
(c) As of the date of this Agreement, the Company shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal or any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal. The Company shall promptly (but in no event later than forty-eight (48) hours following the execution of this Agreement) demand that each Person that has heretofore executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to an SPAC such Person’s consideration of a possible Acquisition ProposalProposal at any time after January 1, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons 2013 (other than agreements that have expired by their terms) to immediately return or destroy (which destruction shall subsequently be certified in writing by such Person to the Group CompaniesCompany if such Person is required to do so pursuant to the terms of the non-disclosure or confidentiality agreement between such Person and the Company) all confidential information heretofore furnished by the Company, the Shareholders and any of its Subsidiaries or any of its or their Affiliates or Representatives to such Person, its Subsidiaries or any of its or their Affiliates or Representatives) with respect to a SPAC Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Amgen Inc), Merger Agreement (Onyx Pharmaceuticals Inc)
No Solicitation. From (a) Launch agrees that it shall immediately cease and cause to be terminated all existing discussions, negotiations and communications with any persons or entities with respect to any offer or proposal relating to any transaction or series of related transactions other than the transactions contemplated by this Agreement involving: (A) any acquisition or purchase from Launch by any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of more than a 15% interest in the total outstanding voting securities of Launch or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) beneficially owning 15% or more of the total outstanding voting securities of Launch or any of its subsidiaries or any merger, consolidation, business combination or similar transaction involving Launch pursuant to which the stockholders of Launch immediately preceding such transaction hold less than 85% of the equity interests in the surviving or resulting entity of such transaction; (B) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than 50% of the assets of Launch; or (C) any liquidation or dissolution of Launch (each, an "ACQUISITION PROPOSAL"). Except as provided in Section 5.2(b), from the date hereof of this Agreement until the Merger Closing Date or, if earlier, the earlier of termination of this Agreement in accordance with Article XIIor the Effective Time, SPAC Launch shall not, not and shall direct any of the Sponsor and not authorize or permit its controlled Affiliates and its and their respective officers, directors and Representatives not todirectors, employees, investment bankers, attorneys, accountants or other agents (collectively, "REPRESENTATIVES") to directly or indirectly (ai) solicit, initiate, solicit or pursue knowingly encourage, or knowingly take any inquiryaction to facilitate the making of, indication of interest, any offer or proposal which constitutes or offer relating is reasonably likely to an SPAC lead to any Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cii) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC any Acquisition Proposal, or (diii) grant any waiverin the event of an unsolicited Acquisition Proposal for Launch, amendment engage in negotiations or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussionsdiscussions with, or negotiations provide any information or data to, any Person (other than Yahoo! or any effort of its affiliates or attempt by representatives) relating to any Person to make, an SPAC Acquisition Proposal. From Any violation of the foregoing restrictions by any of Launch's Representatives shall be deemed to be a breach of this Agreement by Launch. Notwithstanding the foregoing, nothing contained in this Section 5.2 or any other provision hereof shall prohibit Launch or Launch's Board of Directors from (x) taking and disclosing to Launch's stockholders its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to Launch's stockholders as in the good faith judgment of Launch's Board of Directors, only after receipt of advice from outside legal counsel to Launch that such disclosure is required under applicable law and that the date hereoffailure to make such disclosure is reasonably likely to cause Launch's Board of Directors to violate its disclosure obligations to Launch's stockholders under applicable law, SPAC shallis required.
(b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, Launch may furnish information concerning its business, properties or assets to any person or entity pursuant to a confidentiality agreement with terms no less favorable to Launch than those contained in the confidentiality agreement previously entered into between Yahoo! and Launch (the "CONFIDENTIALITY AGREEMENT"), including customary standstill provisions, and shall direct any of the Sponsors may negotiate and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all participate in discussions and negotiations with such person or entity concerning an Acquisition Proposal if, but only if, (x) such Acquisition Proposal provides for consideration to be received by the holders of all, but not less than all, of the issued and outstanding Shares; (y) such person or entity has on an unsolicited basis, and in the absence of any Persons violation of this Section 5.2 by Launch, submitted a bona fide written proposal to Launch relating to any such transaction which the Board of Directors determines in good faith, after receiving advice from CSFB or another nationally recognized investment banking firm, involves consideration to the holders of the Shares that is superior to the consideration offered pursuant to the Offer and otherwise represents, or is reasonably likely to result in, a superior transaction to the Offer and the Merger and for which any necessary financing is committed or, in the reasonable judgment of the Board of Directors, reasonably likely to be obtained, and (z) in the good faith opinion of Launch's Board of Directors, after consultation with outside legal counsel to Launch, the failure to provide such information or access or to engage in such discussions or negotiations would cause Launch's Board of Directors to violate its fiduciary duties to Launch's stockholders under applicable law (an Acquisition Proposal which satisfies clauses (x), (y) and (z) being referred to herein as a "SUPERIOR PROPOSAL"). Launch shall promptly, and in any event within 24 hours following receipt of a Superior Proposal and prior to providing any such party with any material non-public information, notify Yahoo! of such Superior Proposal, which notice shall include the identity of the other party and the terms of such Superior Proposal. Launch shall promptly provide to Yahoo! any material non-public information regarding Launch provided to any other party which was not previously provided to Yahoo!, such additional information to be provided no later than the Group Companiesdate of provision of such information to such other party.
(c) Except as set forth herein, neither Launch's Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the transactions contemplated by this Agreement, to Yahoo! or to Purchaser, the Shareholders approval or recommendation by Launch's Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares in the Offer, Launch's Board of Directors may (subject to the terms of this and their Representativesthe following sentence) withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger, approve or recommend a Superior Proposal, or enter into an Acquisition Agreement (as defined in Section 5.2(d) below) with respect to a SPAC Superior Proposal (other than a confidentiality agreement entered into in compliance with the terms of Section 5.2(b)), in each case at any time after the fifth business day following Launch's delivery to Yahoo! of written notice advising Yahoo! that Launch's Board of Directors has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal; provided, however, that Launch shall not enter into an Acquisition Agreement with respect to a Superior Proposal unless Launch shall also have terminated this Agreement in compliance with Section 5.2(d). Any such withdrawal, modification or change of the recommendation of Launch's Board of Directors, the approval or recommendation or proposed approval or recommendation of any Superior Proposal or the entry by Launch into any agreement with respect to any Superior Proposal shall not change the approval of Launch's Board of Directors for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated by this Agreement, including each of the Offer, the Merger and the Stockholders Agreement.
(d) Launch may terminate this Agreement and simultaneously therewith enter into a letter of intent, agreement-in-principle, acquisition agreement or other similar agreement (each, an "ACQUISITION AGREEMENT") with respect to such Superior Proposal, provided that, prior to any such termination, (i) Launch has provided Yahoo! written notice that it intends to terminate this Agreement pursuant to this Section 5.2(d), identifying the Superior Proposal then determined to be more favorable and the parties thereto and delivering a copy of the Acquisition Agreement for such Superior Proposal in the form to be entered into, (ii) during the period following the delivery of the notice referred to in clause (i) above, during which Yahoo! shall have the right to propose adjustments in the terms and conditions of this Agreement and Launch shall have caused its financial and legal advisors to negotiate with Yahoo! in good faith such proposed adjustments in the terms and conditions of this Agreement, (iii) at least five full days after Launch has provided the notice referred to in clause (i) above, Launch delivers to Yahoo! (A) a written notice of termination of this Agreement pursuant to this Section 5.2(d), and (B) a cashier's check or wire transfer in the amount of the Termination Fee (as defined in Section 8.2(b)).
Appears in 2 contracts
Sources: Merger Agreement (Launch Media Inc), Merger Agreement (Launch Media Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier(a) Except as set forth in this Section 6.1, the termination Company and each of this Agreement in accordance with Article XII, SPAC its Subsidiaries shall notnot and shall cause each of the directors and officers of the Company or any of its Subsidiaries not to, and shall direct any of the Sponsor not authorize and shall otherwise use its controlled Affiliates and reasonable best efforts to cause its and or their respective employees, investment bankers, attorneys, accountants or other advisors, agents or representatives (such directors, officers, directors employees, investment bankers, attorneys, accountants, other advisors, agents and Representatives representatives, collectively, “Representatives”) not to, directly or indirectly indirectly:
(ai) solicit, initiate, propose, knowingly encourage or pursue knowingly facilitate any inquiry, indication inquiries or the making of interest, any proposal or offer relating that constitutes, or could reasonably be expected to an SPAC lead to, any Acquisition Proposal, including (bA) approving any transaction under Section 203 of the DGCL, (B) approving any person becoming an “interested stockholder” under Section 203 of the DGCL and (C) amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock; or
(ii) enter into, continue or otherwise participate in or continue any communications, discussions or negotiations regarding, furnish to any person any information or data with respect to, assist or participate in any third-party effort or attempt by any person with respect to, or furnish or make availableotherwise cooperate in any way with, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal. Notwithstanding the foregoing, prior to the receipt of the Company Stockholder Approval (the “Specified Time”), the Company may, in response to a bona fide, unsolicited written Acquisition Proposal made or received after the date of this Agreement that did not result from a breach by the Company of this Section 6.1, and where the Company Board determines in good faith after consultation with its outside counsel and independent financial advisor that such Acquisition Proposal is, or provide could reasonably likely lead to, a Superior Proposal and that the failure to any thirdtake such action would be inconsistent with the fiduciary obligations of the Company Board, and not earlier than twenty-party access four (24) hours after providing the notice contemplated by 6.1(c), (x) furnish information or data with respect to the businessesCompany to the person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement with terms that are not materially less restrictive of the other party than the terms of the Confidentiality Agreement and (y) participate in and facilitate discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal. Without limiting the foregoing, propertiesit is agreed that any violation of the restrictions set forth in this Section 6.1(a) by any Representative of the Company or any of its Subsidiaries, assets whether or personnel not such person is purporting to act on behalf of SPACthe Company or otherwise, shall be deemed to be a breach of this Section 6.1(a) by the Company; provided that no breach of this Section 6.1(a) shall result solely from the Company or its Representatives informing any person of the specific restrictions of this Section 6.1.
(b) Neither the Company Board nor any committee thereof shall:
(i) except as set forth in this Section 6.1(b), withhold, withdraw, qualify or modify, or propose publicly to withhold, withdraw, qualify or modify, in each case for a manner adverse to the purpose Parent or the Merger Sub, the approval or recommendation by the Company Board or any such committee of encouraging this Agreement or facilitating an SPAC Acquisition Proposal the Merger;
(ii) except as permitted by and in accordance with Section 8.1(d)(ii), cause or (c) permit the Company to enter into any binding letter of intent, memorandum of understanding, binding arrangementagreement in principle, acquisition agreement, merger agreement or similar definitive agreementagreement (an “Acquisition Agreement”) constituting or relating to, or that could reasonably be expected to lead to, any letter Acquisition Proposal (other than a confidentiality agreement referred to in 6.1(a) entered into in the circumstances referred to in 6.1(a)); or
(iii) except as permitted by and in accordance with Section 8.1(d)(ii), adopt, authorize, approve or recommend, or publicly propose to adopt, authorize, approve or recommend, any Acquisition Proposal. Notwithstanding the foregoing, provided the Company shall not have breached its obligations under Section 6.1(a), the Company Board may withdraw or modify the recommendation by the Company Board or any committee thereof of intentthis Agreement or the Merger in circumstances where the Company Board has determined that a Superior Proposal is outstanding, memorandum if (A) (1) the Company Board determines in good faith, after consultation with its outside counsel and an independent financial advisor, that its fiduciary obligations require it to do so, but only at a time that is prior to the Specified Time and is after the second (2nd) business day following the Parent’s receipt of understanding written notice (an “Adverse Recommendation Notice”) advising the Parent that the Company Board desires to withdraw or agreement modify the recommendation and provide with such Adverse Recommendation Notice a summary of the material terms and conditions of such Superior Proposal (and the manner and timing in principlewhich it intends to do so) (such two business day period, the “Notice Period”), and (2) if requested by the Parent, the Company provides the Parent with a reasonable opportunity during the Notice Period to make adjustments in the terms and conditions of this Agreement and negotiates in good faith with the Parent with respect thereto during the Notice Period, in each case as would enable the Company Board or committee thereof to proceed with its recommendation in favor of this Agreement or the Merger, and (B) (1) such withdrawal is due to the existence of a Superior Proposal, and the Company has complied with the requirements of Section 6.1(c), including specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal, and (2) if the Parent shall have, at or prior to the end of the Notice Period, made an offer that would, upon the Company’s acceptance, be binding on the Parent and Merger Sub, the Company Board determines in good faith (after consultation with its financial and legal advisors) that such Superior Proposal continues to be a Superior Proposal as defined below. Any material changes to the financial terms or any material change to other material terms of such Superior Proposal occurring prior to the Company Board’s effecting a Company Adverse Recommendation Change pursuant to this Section 6.1(b) shall require the Company to provide to the Parent a new Adverse Recommendation Notice and a new Notice Period and to comply with the requirements of this Section 6.1(b) with respect to each such Adverse Recommendation Notice. In addition, and notwithstanding the foregoing, at any time prior to the Specified Time, the Company Board may in response to a material development or change in circumstances occurring or arising after the date hereof that was neither known to the Company Board nor reasonably foreseeable as of or prior to the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), withdraw or modify its recommendation of this Agreement or the Merger if the Company Board has concluded in good faith, after consultation with its outside counsel and independent financial advisor, that, in light of such Intervening Event, the failure to take such action would be inconsistent with the fiduciary obligations of the Company Board; provided that, the Company Board shall not be entitled to take such action pursuant to this sentence unless the Company has (x) provided to the Parent at least three business days’ prior written notice advising the Parent that the Company Board intends to take such action and specifying the reasons therefor in reasonable detail and (y) during such three business day period, if requested by the Parent, engaged in good faith negotiations with the Parent to amend this Agreement in such a manner that obviates the need for taking such action as a result of the Intervening Event. Any Company Adverse Recommendation Change shall not change the approval of this Agreement or any other agreement approval of the Company Board, including in any respect that would have the effect of causing any state (including Delaware) corporate takeover statute or other similar statute to be applicable to the transactions contemplated hereby or thereby, including the Merger.
(c) The Company shall as promptly as practicable (and in any event within 1 business day of receipt) advise the Parent orally, with respect written confirmation to an SPAC follow, of any Acquisition Proposal or any request for nonpublic information in connection with any Acquisition Proposal, or any inquiry with respect to or that could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of any such Acquisition Proposal or inquiry and the identity of the person making any such Acquisition Proposal or inquiry. The Company shall (i) keep the Parent reasonably informed, on a current basis, of any material change in the status and details (including any material change to the terms, with any change in price being deemed to be material) of any such Acquisition Proposal or inquiry, (ii) provide to the Parent as promptly as practicable (and in any event within 1 business day) after receipt or delivery thereof copies of all material documents sent or provided to the Company or its Representatives, including those provided by electronic mail, from any third party in connection with any Acquisition Proposal or sent or provided by the Company or its Representatives to any third party in connection with any Acquisition Proposal (except to the extent previously furnished to the Parent) and (iii) if the Parent shall make a counterproposal, consider in good faith the terms of such counterproposal. Contemporaneously with providing any information to a third party in connection with any such Superior Proposal or inquiry, the Company shall furnish a copy of such information to the Parent (except to the extent previously furnished to the Parent).
(d) grant Nothing contained in Section 6.1 shall be deemed to prohibit the Company from taking and disclosing to its stockholders a position with respect to a tender offer contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any waiverrequired disclosure to the Company’s stockholders if, amendment in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with its obligations under applicable law; provided, however, that, in no event shall the Company Board or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussionscommittee thereof take, or negotiations agree or resolve to take, any effort or attempt action prohibited by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC Section 6.1(b).
(e) The Company shall, and shall direct any of the Sponsors and cause its controlled Affiliates Subsidiaries and its and their respective officers, directors and Representatives to, cease immediately cease and terminate all communications, discussions and negotiations with regarding any Persons (other than the Group Companiesproposal that constitutes, the Shareholders and their Representatives) with respect or may reasonably be expected to a SPAC lead to, an Acquisition Proposal.
(f) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Sonus Networks Inc), Merger Agreement (Performance Technologies Inc \De\)
No Solicitation. From the date hereof (a) Until this Agreement is terminated or until the Merger Closing Date oroccurrence of the Closing, if earlierwhichever occurs first, the termination of this Agreement in accordance with Article XII, SPAC Sellers shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and use their respective officers, directors and Representatives reasonable best efforts to cause their representatives not to, directly or indirectly (ai) solicit, initiateinitiate or encourage the submission of inquiries, proposals or pursue offers from any inquiryindividual, indication corporation, partnership, limited liability company or other entity, other than TPG or any of interest, proposal or offer its Affiliates (an "Entity") relating to the purchase of the Notes, the Shares or any portion thereof or the acquisition of all or a significant portion of the assets or equity or debt interest of the Company, whether by merger, tender offer or otherwise (an SPAC "Acquisition Proposal"), (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cii) enter into or participate in any binding understanding, binding arrangement, acquisition agreement, merger agreement discussions regarding an Acquisition Proposal with any Entity or similar definitive agreement(iii) otherwise cooperate with, or any letter of intentassist or participate in, memorandum of understanding facilitate or agreement in principleencourage, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person Entity to make, make an SPAC Acquisition Proposal. From For the avoidance of doubt, Acquisition Proposal does not include the entering into or modification of any Loan Agreements, security agreements or pledge agreements by E.ON AG and after its Affiliates, on the date hereof, SPAC shallone hand, and the Company and its Subsidiaries, on the other hand.
(b) Until this Agreement is terminated or until the occurrence of the Closing, whichever occurs first, at any meeting of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a Shareholder's vote, consent or other approval is sought, such Shareholder shall direct be present (in person or by proxy) and shall vote (or cause to be voted) its Shares against (and shall not execute any written consent in favor of)
(i) any merger agreement or merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Acquisition Proposal or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, delay, prevent or nullify the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations transactions contemplated by this Agreement or the Company Restructuring. The Shareholders further agree not to commit or agree to take any action inconsistent with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalforegoing.
Appears in 2 contracts
Sources: Purchase Agreement (Memc Electronic Materials Inc), Purchase Agreement (Memc Electronic Materials Inc)
No Solicitation. From (a) Neither the date hereof until Company nor any of its Subsidiaries shall, nor shall the Merger Closing Date Company or any of its Subsidiaries authorize or permit any of its or their Representatives to, and the Company shall instruct, and cause each applicable Subsidiary and Affiliate, if any, to instruct, each such Representative not to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to any Acquisition Proposal, or, if earliersubject to Section 6.4(b), (i) solicit, initiate, seek, support or knowingly induce any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the termination Company or any of this Agreement its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that constitutes, or could reasonably lead to, an Acquisition Proposal, (iii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (iv) enter into any agreement in accordance with Article XIIprinciple, SPAC letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal. Subject to Section 6.4(b) and Section 6.4(c), neither the Company Board nor any committee thereof shall notwithhold, withdraw, amend or modify in a manner adverse to Parent or Merger Sub the Board Recommendation, or recommend an Acquisition Proposal, or fail to recommend against acceptance of any tender offer or exchange offer for the Company Shares within ten (10) Business Days after the commencement of such offer (any of the foregoing, an “Adverse Recommendation Change”). The Company shall, and shall direct any of the Sponsor and cause its controlled Affiliates Subsidiaries and its and their respective officersRepresentatives to, directors cease immediately and Representatives cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to or on the date hereof with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, prior to but not toafter the time the vote is taken with respect to the adoption of this Agreement at the Stockholder Meeting, the Company Board, directly or indirectly through any Representative, may (ai) solicitengage in negotiations or discussions with any Third Party that has made (and not withdrawn) a Acquisition Proposal in writing that the Company Board reasonably believes, initiateafter considering the advice of its outside legal counsel and of a financial advisor of nationally recognized reputation, constitutes a Superior Proposal or pursue any inquirycould reasonably be expected to lead to a Superior Proposal, indication of interest, proposal or offer (ii) thereafter furnish to such Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to an SPAC executed confidentiality agreement with terms not materially less favorable to the Company than those contained in the Confidential Disclosure Agreement effective as of September 10, 2007 between the Company and Parent (the “Confidentiality Agreement”), which Confidentiality Agreement shall not include any provision for any exclusive right to negotiate with such Third Party or having the actual effect of restricting the Company from fulfilling its obligations under this Agreement, (iii) following receipt of such Acquisition Proposal, make an Adverse Recommendation Change; provided, that, immediately prior to the adoption of a resolution to make an Adverse Recommendation Change, the Company Board has determined after considering the advice of its outside legal counsel and of a financial advisor of a nationally recognized reputation, that such Acquisition Proposal constitutes a Superior Proposal and / or (biv) participate take any action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the foregoing clauses (i) through (iii), only if (A) such Superior Proposal shall not have arisen from a material breach of the provisions of this Section 6.4 or continue was not otherwise submitted as a result of a violation of this Section 6.4, (B) the Company shall have complied with its obligations under this Section 6.4 and (C) the Company Board determines by a majority vote, after considering the advice of outside legal counsel to the Company, that it is necessary or appropriate to take such action to comply with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) or Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal. The Company Board shall not take any discussions of the actions referred to in clauses (i) through (iv) of the Section 6.4(b) unless the Company shall have first complied with the provisions of Section 6.4(c) hereof and delivered to Parent a prior written notice advising that it intends to take such action.
(c) The Company shall notify Parent promptly, but in no event later than the earlier of (x) the second Business Day, or negotiations (y) forty-eight (48) hours, after receipt by the Company or any of its Subsidiaries (or any of their respective Representatives), of any Acquisition Proposal or any inquiry (including any request for non-public information) that constitutes or could reasonably be expected to lead to an Acquisition Proposal as well as the identity of the Third Party making any such Acquisition Proposal and the price and material terms and conditions communicated with respect to such Acquisition Proposal. The Company shall provide such notice in writing. The Company shall keep Parent informed, as promptly as practicable, of the status and details of any such Acquisition Proposal and provide Parent as promptly as practicable, but in no event later than the earlier of (x) the second Business Day or (y) forty-eight (48) hours after receipt by the Company, a copy of all written proposals and drafts of definitive agreements provided to the Company in connection with any third-party such Acquisition Proposal or inquiry. After initial notice to Parent in accordance with respect to, or furnish or make available, any information concerning SPAC to any third party relating to this Section 6.4(c) of a Third Party making an SPAC Acquisition Proposal, or provide if requested by Parent, the Company shall engage in good faith negotiations with Parent for ninety-six (96) hours after that notice is given to any third-party access to the businesses, properties, assets or personnel of SPAC, amend this Agreement in each case for the purpose of encouraging or facilitating an SPAC such a manner that such Acquisition Proposal would not be a Superior Proposal. If, subsequent to such initial notice, there is a change in price or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter form of intent, memorandum of understanding or agreement in principle, or any other agreement with respect consideration to an SPAC such Acquisition Proposal, then the Company shall notify Parent of such change and shall engage in good faith negotiations with Parent for ninety-six (96) hours after notice of that change is given to Parent to amend this Agreement in such a manner that such Acquisition Proposal would not be a Superior Proposal. The Company shall provide Parent with at least two (2) Business Days prior notice (or (dsuch lesser prior notice as provided to the members of Company Board) grant of any waiver, amendment or release under meeting of the Company Board at which the Company Board is reasonably expected to discuss any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect including to determine whether such Acquisition Proposal is a SPAC Acquisition Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Axway Inc.), Merger Agreement (Tumbleweed Communications Corp)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC (a) The Company shall not, and shall direct any of the Sponsor and cause its controlled Affiliates Subsidiaries and its and their respective officers, directors and Representatives employees not to, and shall use reasonable best efforts to cause its and their respective agents, investment bankers, financial advisors, attorneys, accountants and other retained representatives (each, together with such officers, directors and employees, a “Representative”) not to, directly or indirectly indirectly, (ai) initiate, solicit, initiate, knowingly encourage or pursue knowingly facilitate any inquiry, indication inquiries or the making of interest, any proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish a transaction to effect, a merger, reorganization, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of tender offer), business combination, recapitalization, liquidation, dissolution or make availablesimilar transaction involving the Company or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries, proposals or offers being referred to herein as an “Acquisition Proposal”), (ii) participate in any discussions with or provide any confidential information concerning SPAC or data to any third party Person (or Representative of such Person) relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or Alternative Transaction, or engage in any negotiations concerning an Acquisition Proposal or Alternative Transaction, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or Alternative Transaction, (ciii) approve or execute or enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, merger agreement, asset purchase or share exchange agreement, option agreement or other Contract related to any other agreement with respect to Acquisition Proposal or Alternative Transaction (an SPAC “Acquisition Proposal, Agreement”) or (div) grant any waiver, amendment propose or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person agree to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct do any of the Sponsors foregoing. The Company shall be responsible for any violation of this Section 6.9 by its Representatives.
(b) As used in this Agreement, “Alternative Transaction” means any of (i) a transaction pursuant to which any Person (or group of Persons) other than Parent or its Affiliates, directly or indirectly, acquires or would acquire more than twenty percent (20%) of the outstanding shares of Company Common Stock or outstanding voting power of the Company, whether from the Company or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, reorganization, share exchange, consolidation or other business combination involving the Company and any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty percent (20%) or more of the fair market value of the consolidated assets of the Company (except, in each case, the Merger and the Bank Merger), (iii) any transaction pursuant to which any Person (or group of Persons) other than Parent or its Affiliates acquires or would acquire control of assets (including for this purpose the outstanding equity securities of any Company Subsidiaries and securities of the entity surviving any merger or business combination involving any Company Subsidiary) of the Company or any of its Subsidiaries representing more than twenty percent (20%) of the fair market value of all the assets, deposits, net revenues or net income of the Company and its controlled Affiliates and its and their respective officersSubsidiaries, directors and Representatives totaken as a whole, immediately cease and terminate all discussions and negotiations with prior to such transaction or (iv) any Persons (other consolidation, business combination, recapitalization or similar transaction involving the Company or any of its Subsidiaries, other than the Group CompaniesTransactions, as a result of which the Shareholders holders of shares of Company Common Stock immediately prior to such transaction do not, in the aggregate, own at least eighty percent (80%) of the outstanding shares of Company Common Stock and their Representatives) with respect the outstanding voting power of the surviving or resulting entity in such transaction immediately after the consummation thereof in substantially the same proportion as such holders held the shares of Company Common Stock immediately prior to a SPAC Acquisition Proposalthe consummation thereof.
Appears in 2 contracts
Sources: Merger Agreement (Park Sterling Corp), Merger Agreement (SOUTH STATE Corp)
No Solicitation. From (a) The Company has, and will cause its Representatives (as defined below) to have, ceased and terminated all existing discussions, negotiations and communications with any persons (other than Parent, Sub or any of their respective Subsidiaries or Representatives) with respect to any offer or proposal relating to any transaction or proposed transaction or series of related transactions, other than the transactions contemplated hereby, involving: (A) any consolidation, tender offer, business combination, merger or similar transaction involving the Company or any Company Subsidiary; (B) any recapitalization, restructuring, liquidation or dissolution of the Company or any Company Subsidiary, (C) any issuance by the Company individually or in the aggregate of over fifteen percent (15%) of its equity securities or (D) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or its Subsidiaries (including for this purpose the outstanding equity securities of the Company’s Subsidiaries) for consideration equal to fifteen percent (15%) or more of the market value of all of the outstanding Shares on the last trading day prior to the date hereof of this Agreement or fifteen percent (15%) of the consolidated total assets of the Company and the Company Subsidiaries (each of clauses (A)-(D), an “Acquisition Proposal”). Except as provided in this Section 5.2, from the date of this Agreement until the Merger Closing Date or, if earlier, the earlier of termination of this Agreement in accordance with Article XIIor the Effective Time, SPAC the Company shall not, not and shall direct any not authorize or permit its officers, directors, employees, investment bankers, attorneys, accountants or other agents or those of the Sponsor and its controlled Affiliates and its and their respective officersCompany Subsidiaries (collectively, directors and Representatives not to, “Representatives”) to directly or indirectly (ai) solicit, initiate, solicit or pursue knowingly encourage, or knowingly take any inquiryaction to facilitate the making of, indication of interest, any offer or proposal which constitutes or offer relating is reasonably likely to an SPAC lead to any Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cii) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC any Acquisition Proposal, or (diii) grant engage in negotiations or discussions with, or provide any waivernon-public information or data to, amendment any person (other than Parent or release any of its affiliates or Representatives) relating to any Acquisition Proposal. The Company agrees that any material violations of the restrictions set forth in this Section 5.2 by any of its Representatives shall be deemed to be a material breach of this Agreement (including this Section 5.2) by the Company. Notwithstanding the foregoing, nothing contained in this Section 5.2 or any other provision hereof shall prohibit the Company or the Company Board of Directors from taking and disclosing to the Company’s stockholders its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act.
(b) Notwithstanding anything to the contrary set forth in this Agreement, prior to the Acceptance Time, the Company and its Representatives may furnish non-public information regarding the Company to any confidentiality agreement or otherwise knowingly facilitate person and may negotiate and participate in discussions and negotiations with such person concerning an Acquisition Proposal if, but only if, such person has, in the absence of any material violation of this Section 5.2 by the Company, submitted a bona fide written proposal to the Company relating to any such inquiriesAcquisition Proposal which the Board of Directors determines in good faith, proposalsafter consultation with its financial advisor, discussions, is or negotiations or any effort or attempt by any Person is reasonably expected to make, an SPAC Acquisition lead to a Superior Proposal. From and after the date hereofhereof and prior to the Acceptance Time, SPAC the Company shall within twenty-four (24) hours notify the Parent in writing in the event that the Company or any of the Company Subsidiaries or Representatives receives (i) any Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of the Company Subsidiaries other than requests for information in the ordinary course of business and, in the good faith judgment of the Company Board of Directors, unrelated to an Acquisition Proposal, or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall provide Parent within such twenty-four (24) hour period with the identity of such Person and a copy of such Acquisition Proposal, inquiry or request (or, where such Acquisition Proposal is not in writing, a description of the material terms and conditions of such Acquisition Proposal, inquiry or request). The Company shall keep the Parent reasonably informed in writing (and in any event no later than twenty-four (24) hours after the occurrence) of any material changes, developments, discussions or negotiations relating to any Acquisition Proposal and provide Parent with copies of all documents received or provided by the Company related to such Acquisition Proposal. Without limiting the foregoing, the Company shall within twenty-four (24) hours notify the Parent in writing if the Company determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any agreement with any person subsequent to the date of this Agreement that would restrict the Company’s ability to provide such information to Parent, and, if the Company is a party to any agreement that would prohibit the Company from providing such information to Parent, prior to providing non-public information to, or engaging in discussions or negotiations with, the counterparty to such agreement, the Company will obtain approval from the counterparty to such agreement to allow the Company to provide such information to Parent. The Company shall not, and shall cause the Company Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any of the Company Subsidiaries is or becomes a party; provided, however, that the Company and the Company Subsidiaries may respond to an unsolicited Acquisition Proposal submitted to the Company by a party that is bound by a standstill agreement and may decline to enforce or cause to be enforced its rights under such standstill agreement relating to the submission of such unsolicited Acquisition Proposal if, in either case, the Company Board of Directors determines in good faith, after consultation with outside counsel, that failure to so respond or failure to decline to take such action, as the case may be, would be inconsistent with the fiduciary duties of the Company Board of Directors to the stockholders of the Company under applicable Law. The Company will promptly provide to the Parent any non-public information concerning the Company or the Company Subsidiaries provided or made available pursuant to this Section 5.2(b) which was not previously provided or made available to the Parent.
(c) Except as set forth herein, neither the Company Board of Directors nor any committee thereof shall (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, in a manner adverse to the transactions contemplated by this Agreement to Parent or Sub, the Company Board Recommendation, (ii) approve or recommend or propose publicly to approve or recommend, any Acquisition Proposal (any action referred to in the foregoing clauses (i) and (ii) being referred to as an “Adverse Recommendation Change”) or (iii) enter into any written agreement providing for the consummation of any Acquisition Proposal (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything in this Agreement to the contrary, prior to the Acceptance Time, if (i) the Company receives a written, bona fide Acquisition Proposal from a third party, (ii) a material breach by the Company of this Section 5.2 has not contributed to the making of an Acquisition Proposal and (iii) the Company Board of Directors concludes in good faith, after consultation with outside counsel and its financial advisors, such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement which have been offered by Parent (if any) pursuant to this Section 5.2, the Company Board of Directors may, if it determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with the fiduciary duties of the Company Board of Directors to the stockholders of the Company under applicable Law, (A) effect an Adverse Recommendation Change and/or (B) terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (B), and any purported termination pursuant to the foregoing clause (B) shall be void and of no force or effect, unless in advance of or substantially concurrently with such termination the Company (1) pays the fee required by and pursuant to the terms of Section 8.2 and (2) immediately following such termination enters into a binding definitive agreement providing for such Superior Proposal; and provided, further, that the Company Board of Directors may not effect an Adverse Recommendation Change pursuant to the foregoing clause (A) or terminate this Agreement pursuant to the foregoing clause (B) unless (1) the Company shall not have breached in any material respect this Section 5.2, (2) the Company shall have provided prior written notice to the Parent, at least three (3) business days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal), and shall have contemporaneously provided a copy of the proposed Alternative Acquisition Agreement with respect to such Superior Proposal, (3) prior to effecting such Adverse Recommendation Change or terminating this Agreement to enter into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal, the Company shall, and shall direct any of the Sponsors and cause its controlled Affiliates and its and their respective officers, directors and Representatives to, during the Notice Period, negotiate with the Parent in good faith (to the extent the Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, and (4) following any negotiation described in the immediately cease and terminate all discussions and negotiations with preceding clause (3), such Acquisition Proposal continues to constitute a Superior Proposal. In the event of any Persons (other than material revisions to the Group Companiesterms of the Superior Proposal after the start of the Notice Period, the Shareholders Company shall be required to deliver a new written notice to the Parent and their Representatives) to comply with the requirements of this Section 5.2 with respect to such new written notice, and the Notice Period shall be deemed to have re-commenced on the date of such new notice. Notwithstanding the foregoing, if fewer than three (3) business days remains before the then-scheduled expiration date of the Offer, the Notice Period with respect to the Company Board of Directors effecting an Adverse Recommendation Change pursuant to the foregoing clause (A) shall equal twenty-four (24) hours, provided, however, that, in such a SPAC circumstance, the Notice Period with respect to the Company terminating this Agreement pursuant to the foregoing clause (B) shall remain three (3) business days. Any Adverse Recommendation Change shall not change the approval of the Company Board of Directors for purposes of causing any state takeover statute or other state Law to be inapplicable to the transactions contemplated by this Agreement, including each of the Offer and the Merger or by the tender and voting Agreements with Principal Stockholders. For purposes of this Agreement, a “Superior Proposal” is a bona fide written Acquisition ProposalProposal to acquire at least fifty percent (50%) of the equity securities of the Company or at least fifty percent (50%) of the consolidated total assets of the Company and the Company Subsidiaries,
(A) on terms which the Company Board of Directors determines in its good faith judgment (after consultation with its financial advisors) to be more favorable to the holders of Shares from a financial point of view than the Offer and the Merger, and (B) which the Company Board of Directors has determined in its good faith judgment (after consultation with its financial and legal advisors) to be reasonably capable of being completed on the terms proposed, taking into account all financial, regulatory, legal and other aspects of such proposal.
(e) Notwithstanding the foregoing, the Company Board of Directors may withdraw or modify the Company Board Recommendation in the absence of a Superior Proposal if the Company Board of Directors has concluded in good faith, after consultation with its outside counsel, that failure to so withdraw or modify the Company Board Recommendation would be inconsistent with the fiduciary obligations of the Company Board of Directors to the stockholders of the Company under applicable Law, provided, however, that the Company Board of Directors shall not so withdraw or modify the Company Board Recommendation unless the Company has (A) provided to the Parent at least three (3) business days prior written notice (or such shorter period as remains prior to the then-scheduled expiration date of the Offer) advising the Parent that the Company Board of Directors intends to take such action and specifying the reasons therefore in reasonable detail and (B) during such three (3) business day period, or shorter period, as the case may be, if requested by the Parent, engaged in good faith negotiations with the Parent to amend this Agreement in such a manner that obviates the need or reason for the withdrawal or modification.
(f) The Company shall promptly (but in no event later than two (2) business days after the date of this Agreement) demand that each person that, as of the date of this Agreement, has executed a confidentiality agreement in connection with a potential Acquisition Proposal return (or destroy, to the extent permitted by the terms of the applicable confidentiality agreement) all confidential information heretofore furnished to such individual or entity by or on behalf of the Company or a Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Covidien Group S.a.r.l.)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC The Company and its subsidiaries shall not, and nor shall direct they permit any of the Sponsor and its controlled Affiliates and its and their respective officersofficers and directors (or authorize any affiliates of any such officers and directors), directors and Representatives not toaffiliates, or employees or any investment banker, attorney, accountant or other advisor or representative retained by (or otherwise working on behalf of) the Company or any of its subsidiaries (collectively, “Representatives”) to directly or indirectly indirectly: (ai) solicit, initiateinitiate or knowingly encourage, knowingly facilitate or knowingly induce any inquiry with respect to, or pursue the making, submission or announcement of, any inquiryAcquisition Proposal (as defined in Section 4.4(h)(i)) with respect to the Company or any of its subsidiaries, indication (ii) participate or otherwise engage 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 interestequity 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 may reasonably be expected to lead to, proposal any Acquisition Proposal with respect to the Company or offer any of its subsidiaries, (iii) engage in discussions with any person with respect to any Acquisition Proposal with respect to the Company or any of its subsidiaries, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal with respect to the Company or any of its subsidiaries (except to the extent specifically permitted pursuant to Section 4.4(d)), or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to an SPAC any Acquisition ProposalProposal or transaction contemplated thereby with respect to the Company or any of its subsidiaries. The Company and its subsidiaries will immediately cease, (b) participate in or continue and will cause its Representatives to immediately cease, any and all existing activities, discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement parties conducted heretofore with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Optical Communication Products Inc), Merger Agreement (Oplink Communications Inc)
No Solicitation. (a) From the date hereof of this Agreement until the Merger Closing Date or, if earlier, earlier of the Effective Time or the termination of this Agreement in accordance with Article XIIAgreement, SPAC the Company and the Company Subsidiaries shall not, not (and the Company shall direct cause each of its and any of the Sponsor and its controlled Affiliates and its and their respective Company Subsidiaries’ officers, directors and Representatives or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries not to, ) directly or indirectly indirectly: (ai) solicit, initiate, propose, encourage or pursue any inquiryfacilitate, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate engage in or continue any discussions or negotiations with any thirdPerson (other than Parent or Sub) (whether such discussions or negotiations are initiated by the Company or otherwise) relating to (1) any business combination with or any direct or indirect acquisition, in a single transaction or a series of transactions and whether by way of merger, purchase of capital stock, purchase of assets or otherwise, of (X) the Company, (Y) more than 25% of the fair market value of the assets of the Company and the Company Subsidiaries taken as a whole or (Z) more than 25% of any class of Company Capital Stock, (2) any tender offer (including a self-party tender offer) or exchange offer, as defined pursuant to the Exchange Act, that, if consummated, would result in any Person or group beneficially owning 25% or more of any class of Company Capital Stock or the filing with respect tothe SEC of a Schedule TO or a registration statement under the Securities Act in connection therewith or (3) any other merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or furnish other similar transaction involving the Company or make availableany Company Subsidiary (any of (1), (2) or (3), an “Alternative Acquisition”); (ii) solicit, initiate, propose, encourage or facilitate the making of any information concerning SPAC proposal or offer (including any proposal or offer from or to the Company’s stockholders) from any third party Person (other than Parent or Sub) relating to an SPAC Alternative Acquisition (an “Alternative Acquisition Proposal”); or (iii) provide information with respect to the Company or any Company Subsidiary to any Person (other than Parent or Sub) relating to a possible Alternative Acquisition by any Person (other than Parent or Sub). Notwithstanding the foregoing, prior to receiving the Company Stockholder Approval, the Company Board may, to the extent required by the fiduciary obligations of the Company Board under Delaware law, as determined in good faith by the Company Board after consultation with outside legal counsel, in response to a bona fide, written Alternative Acquisition Proposal that the Company Board determines, in good faith after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, is or is reasonably likely to result in a Superior Company Proposal, and after providing a notice of and a copy of such Superior Company Proposal to Parent, (A) participate in discussions and negotiations regarding such Alternative Acquisition Proposal, or provide to any third-party access (B) furnish information with respect to the businesses, properties, assets or personnel of SPACCompany and its Subsidiaries to the Person (and its representatives) making such Alternative Acquisition Proposal pursuant to a customary confidentiality agreement that does not contain terms that would prevent the Company from complying with its obligations under this Section 6.02 and (C) approve and recommend such Superior Company Proposal and, in each case for connection with such Superior Company Proposal, withdraw, modify or change the purpose Company Board’s recommendation (any of encouraging or facilitating an SPAC Acquisition the foregoing, a “Change in Board Recommendation”); provided, that the Company shall not effect a Change in Board Recommendation unless the Company has (x) provided a timely notice to Parent (a “Notice of Superior Proposal”), advising Parent that the Company Board has received a Superior Company Proposal, specifying the material terms and conditions of such Superior Company Proposal or and identifying the Person making such Superior Company Proposal (c) enter into it being understood and agreed that any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, amendment to the financial terms or any other agreement with respect to an SPAC Acquisition Proposal, or material term of such Superior Company Proposal shall require a new Notice of Superior Proposal and a new three business day period) and (dy) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after negotiated during the date hereof, SPAC shall, and shall direct any three business day period following Parent’s receipt of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations Notice of Superior Proposal in good faith with any Persons Parent (other than to the Group Companiesextent Parent wishes to negotiate) to enable Parent to make a counter-offer. For purposes of this Section 6.02, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalterm “Person” shall include any group as defined in the Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Carters Inc), Merger Agreement (Oshkosh B Gosh Inc)
No Solicitation. From Prior to the date hereof until the Merger Closing Date or, if earlierEffective Time, the termination Company agrees (a) that neither it nor any of this Agreement in accordance with Article XII, SPAC shall notits affiliates or Subsidiaries shall, and it shall direct any of the Sponsor and not authorize or permit its controlled Affiliates and its and their respective officers, directors and Representatives not directors, employees, representatives, investment bankers, attorneys, accountants or other agents to, initiate, solicit or encourage (including by way of furnishing information), directly or indirectly (a) solicitindirectly, initiate, any inquiries or pursue the making or implementation of any inquiry, indication of interest, proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, consolidation or other business combination including the Company or any of its Subsidiaries or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries taken as a whole, (ii) 15% or more of the outstanding shares of Company Common Stock or (iii) 15% or more of the outstanding shares of the capital stock of any Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or group relating to an SPAC Acquisition Proposal (excluding the transactions contemplated by this Agreement), or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal, ; (b) participate in or continue that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any third-party parties with respect to, or furnish or make available, any information concerning SPAC to any third of the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section 4.1(d) and will require each such party relating who has signed a confidentiality agreement to an SPAC Acquisition Proposal, honor the restrictions therein with respect to open market purchases of Company Common Stock and to return or provide to any third-party access to destroy all confidential information of the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or Company previously provided by it; and (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or that it will notify Parent immediately (dorally followed by written confirmation) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate if any such inquiries, proposalsproposals or offers are received by, discussionsany such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any effort of such persons. Notwithstanding the above, (A) the Company may provide non-public information to any person or attempt group if (i) such person or group has expressed a written interest in (which, unless such person previously has been provided confidential information, need not constitute a proposal for) making an Acquisition Proposal providing greater aggregate value to the Company and/or the Company's shareholders than the transactions contemplated by any Person this Agreement; (ii) the Company reasonably believes such person or group has the financial ability to make, consummate an SPAC Acquisition Proposal. From ; (iii) such person or group executes a confidentiality letter no less favorable to the Company than the Parent Confidentiality Letter (as defined below); (iv) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith that it is necessary, in order to comply with the Board's fiduciary duties under applicable law, to provide such requested information; and after (v) the date hereofCompany provides notice to Parent of the identity of the person or group to whom the non-public information is being given at or before the time such information is given and the Company delivers to Parent a copy of all such information concurrently with its delivery to the requesting party and (B) the Company may (I) enter into discussions or negotiate with any person or group that makes a wholly unsolicited bona fide Acquisition Proposal providing greater aggregate value to the Company and/or the Company's shareholders than the transactions contemplated by this Agreement, SPAC shallif, and shall direct any only to the extent that, (1) the Board of Directors of the Sponsors and Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its controlled Affiliates and its and their respective officersfiduciary duties to stockholders imposed by law, directors and Representatives to, immediately cease and terminate all (2) prior to entering into discussions and or negotiations with any Persons (other than the Group Companiessuch person or group, the Shareholders Company provides written notice (the "Acquisition Proposal Notice") to Parent to the effect that it is entering into discussions or negotiations with such person or group, and their Representatives(3) the Company keeps Parent informed of the status and all material information including the identity of such person or group with respect to any such discussions or negotiations to the extent such disclosure would not constitute a SPAC violation of any applicable law or any confidentiality agreement with such person or group; and (II) to the extent required, comply with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Usf&g Corp), Merger Agreement (Titan Holdings Inc)
No Solicitation. From (a) Launch agrees that it shall immediately cease and cause to be terminated all existing discussions, negotiations and communications with any persons or entities with respect to any offer or proposal relating to any transaction or series of related transactions other than the transactions contemplated by this Agreement involving: (A) any acquisition or purchase from Launch by any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of more than a 15% interest in the total outstanding voting securities of Launch or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) beneficially owning 15% or more of the total outstanding voting securities of Launch or any of its subsidiaries or any merger, consolidation, business combination or similar transaction involving Launch pursuant to which the stockholders of Launch immediately preceding such transaction hold less than 85% of the equity interests in the surviving or resulting entity of such transaction; (B) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than 50% of the assets of Launch; or (C) any liquidation or dissolution of Launch (each, an "Acquisition Proposal"). Except as provided in Section 5.2(b), from the date hereof of this Agreement until the Merger Closing Date or, if earlier, the earlier of termination of this Agreement in accordance with Article XIIor the Effective Time, SPAC Launch shall not, not and shall direct any of the Sponsor and not authorize or permit its controlled Affiliates and its and their respective officers, directors and Representatives not todirectors, employees, investment bankers, attorneys, accountants or other agents (collectively, "Representatives") to directly or indirectly (ai) solicit, initiate, solicit or pursue knowingly encourage, or knowingly take any inquiryaction to facilitate the making of, indication of interest, any offer or proposal which constitutes or offer relating is reasonably likely to an SPAC lead to any Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cii) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC any Acquisition Proposal, or (diii) grant any waiverin the event of an unsolicited Acquisition Proposal for Launch, amendment engage in negotiations or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussionsdiscussions with, or negotiations provide any information or data to, any Person (other than Yahoo! or any effort of its affiliates or attempt by representatives) relating to any Person to make, an SPAC Acquisition Proposal. From Any violation of the foregoing restrictions by any of Launch's Representatives shall be deemed to be a breach of this Agreement by Launch. Notwithstanding the foregoing, nothing contained in this Section 5.2 or any other provision hereof shall prohibit Launch or Launch's Board of Directors from (x) taking and disclosing to Launch's stockholders its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to Launch's stockholders as in the good faith judgment of Launch's Board of Directors, only after receipt of advice from outside legal counsel to Launch that such disclosure is required under applicable law and that the date hereoffailure to make such disclosure is reasonably likely to cause Launch's Board of Directors to violate its disclosure obligations to Launch's stockholders under applicable law, SPAC shallis required.
(b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, Launch may furnish information concerning its business, properties or assets to any person or entity pursuant to a confidentiality agreement with terms no less favorable to Launch than those contained in the confidentiality agreement previously entered into between Yahoo! and Launch (the "Confidentiality Agreement"), including customary standstill provisions, and shall direct any of the Sponsors may negotiate and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all participate in discussions and negotiations with such person or entity concerning an Acquisition Proposal if, but only if, (x) such Acquisition Proposal provides for consideration to be received by the holders of all, but not less than all, of the issued and outstanding Shares; (y) such person or entity has on an unsolicited basis, and in the absence of any Persons violation of this Section 5.2 by Launch, submitted a bona fide written proposal to Launch relating to any such transaction which the Board of Directors determines in good faith, after receiving advice from CSFB or another nationally recognized investment banking firm, involves consideration to the holders of the Shares that is superior to the consideration offered pursuant to the Offer and otherwise represents, or is reasonably likely to result in, a superior transaction to the Offer and the Merger and for which any necessary financing is committed or, in the reasonable judgment of the Board of Directors, reasonably likely to be obtained, and (z) in the good faith opinion of Launch's Board of Directors, after consultation with outside legal counsel to Launch, the failure to provide such information or access or to engage in such discussions or negotiations would cause Launch's Board of Directors to violate its fiduciary duties to Launch's stockholders under applicable law (an Acquisition Proposal which satisfies clauses (x), (y) and (z) being referred to herein as a "Superior Proposal"). Launch shall promptly, and in any event within 24 hours following receipt of a Superior Proposal and prior to providing any such party with any material non-public information, notify Yahoo! of such Superior Proposal, which notice shall include the identity of the other party and the terms of such Superior Proposal. Launch shall promptly provide to Yahoo! any material non-public information regarding Launch provided to any other party which was not previously provided to Yahoo!, such additional information to be provided no later than the Group Companiesdate of provision of such information to such other party.
(c) Except as set forth herein, neither Launch's Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the transactions contemplated by this Agreement, to Yahoo! or to Purchaser, the Shareholders approval or recommendation by Launch's Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares in the Offer, Launch's Board of Directors may (subject to the terms of this and their Representativesthe following sentence) withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger, approve or recommend a Superior Proposal, or enter into an Acquisition Agreement (as defined in Section 5.2(d) below) with respect to a SPAC Superior Proposal (other than a confidentiality agreement entered into in compliance with the terms of Section 5.2(b)), in each case at any time after the fifth business day following Launch's delivery to Yahoo! of written notice advising Yahoo! that Launch's Board of Directors has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal; provided, however, that Launch shall not enter into an Acquisition Agreement with respect to a Superior Proposal unless Launch shall also have terminated this Agreement in compliance with Section 5.2(d). Any such withdrawal, modification or change of the recommendation of Launch's Board of Directors, the approval or recommendation or proposed approval or recommendation of any Superior Proposal or the entry by Launch into any agreement with respect to any Superior Proposal shall not change the approval of Launch's Board of Directors for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated by this Agreement, including each of the Offer, the Merger and the Stockholders Agreement.
(d) Launch may terminate this Agreement and simultaneously therewith enter into a letter of intent, agreement-in-principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") with respect to such Superior Proposal., provided that, prior to any such termination, (i) Launch has provided Yahoo! written notice that it intends to terminate this Agreement pursuant to this Section 5.2(d), identifying the Superior Proposal then determined to be more favorable and the parties thereto and delivering a copy of the Acquisition Agreement for such Superior Proposal in the form to be entered into, (ii) during the period following the delivery of the notice referred to in clause (i) above, during which Yahoo! shall have the right to propose adjustments in the terms and conditions of this Agreement and Launch shall have caused its financial and legal advisors to negotiate with Yahoo! in good faith such proposed adjustments in the terms and conditions of this Agreement, (iii) at least five full days after Launch has provided the notice referred to in clause (i) above, Launch delivers to Yahoo! (A) a written notice of termination of this Agreement pursuant to this Section 5.2(d), and (B) a cashier's check or wire transfer in the amount of the Termination Fee (as defined in Section 8.2(b)). ARTICLE VI
Appears in 2 contracts
Sources: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier(a) Except as set forth in this Section 5.4(a), the termination of this Agreement in accordance with Article XII, SPAC Company shall notnot and the Company shall cause its Subsidiaries not to, and shall direct will not permit any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly (a) indirectly, solicit, initiate, encourage or pursue knowingly facilitate (including by way of furnishing or disclosing non-public information), or participate in discussions or negotiations with, or otherwise communicate with or provide any inquirynon-public information to any corporation, indication partnership, company, Person or "group" (as defined under Section 13(d) of interestthe Exchange Act and the rules and regulations thereunder) (other than the Parent, Merger Sub, or an affiliate, associate, representative or agent of the Parent or Merger Sub) concerning, any merger, consolidation, exchange offer, leveraged buyout, business combination, reorganization, recapitalization, sale of or tender offer for shares of capital stock, sale of assets, plan of liquidation or similar transaction involving the Company or its Subsidiaries (an "Acquisition Transaction") or enter into or consummate any agreement, arrangement or understanding requiring it to agree to approve or recommend an Acquisition Transaction or to abandon (or fail to consummate) the Merger or this Merger Agreement. Notwithstanding the foregoing, prior to the Meeting, the Company may, directly or indirectly, furnish information and access, in each case in response to an unsolicited, bona-fide written proposal for an Acquisition Transaction that did not otherwise result from a breach of this Section 5.4, and subject to compliance with Section 5.4(c), to any Person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), pursuant to appropriate confidentiality agreements (on terms no less favorable to the Company than the terms contained in the Confidentiality Agreement dated May 30, 2001 between Cornerstone and the Company) (the "Competing Party Confidentiality Agreement"), and may participate in discussions and negotiate with such Person or "group" concerning any proposal or offer from any Person relating to any such Acquisition Transaction, if the Board determines (by requisite approval in accordance with the Company's by-laws) in its good faith judgment after consultation with the Company's counsel that (i) failing to take such action is reasonably likely to constitute a breach of the fiduciary duties of the Board under applicable law, (ii) such proposal is not subject to (A) any financing contingency more significant than the financing contingencies to which the Merger is subject upon execution of this Merger Agreement or (B) any other material contingency to which such Person has not demonstrated its ability to overcome, (iii) such proposal is reasonably likely to be consummated and (iv) such proposal is more favorable to the shareholders of the Company (other than the Management Participants) from a financial point of view than the Transactions (such proposal to be referred to as a "Competing Transaction"). In addition, in the event of such determination by the Board, the Company shall direct its officers and other appropriate personnel to cooperate with and be reasonably available to consult with any such Person or "group", subject to the execution of the Competing Party Confidentiality Agreement.
(b) Neither the Company, its Subsidiaries, the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Parent or Merger Sub, the approval, adoption or recommendation by the Board or any such committee of this Merger Agreement, the Merger or the other Transactions, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Transaction, (iii) enter into, approve or recommend, or propose to approve or recommend, or execute, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other agreement relating to any Acquisition Transaction or agree or propose to agree to do any of the foregoing, or (iv) submit any Acquisition Transaction at the Meeting or any other shareholders meeting for purposes of voting upon approval and adoption of the Acquisition Transaction; provided, however, that prior to the Meeting, the Company may, to the extent required by the fiduciary obligations of the Board, as determined in good faith by the Board (by requisite approval in accordance with the Company's by-laws) after consultation with the Company's counsel, and after compliance with the following sentence, terminate this Merger Agreement pursuant to Section 7.1(d) (provided that concurrently with such termination the Company enters into a definitive agreement containing the terms of the Competing Transaction). If the Company shall exercise its right to terminate this Merger Agreement pursuant to this Section 5.4(b), the Company shall deliver to Cornerstone (i) a payment by check or wire transfer of same day funds in the amount of the Termination Fee as provided in Section 5.7(b) and (ii) written acknowledgment from the Company and from the other Person to the Competing Transaction that the Company and such other Person have irrevocably waived any right to contest such payment.
(c) The Company promptly (and in any event within 12 hours of the relevant event) shall notify Merger Sub orally and in writing of any proposal or inquiry for a possible Acquisition Transaction or any inquiry with respect to or that could reasonably be expected to lead to any Acquisition Transaction (including any request for non-public information) and such notice shall include the identity of the person making any such Acquisition Transaction, inquiry or request, and, in each case, the material terms and conditions thereof, including any amendment or other modification to the terms and conditions. The Company shall keep Merger Sub fully apprised of the status of any proposal relating to an SPAC Acquisition ProposalTransaction on a current basis.
(d) The Company shall not cancel, (b) participate in terminate, amend, modify or continue waive any of the terms of any confidentiality or standstill agreement executed with respect to the Company by any other party prior to the date of this Merger Agreement. Upon the execution of this Merger Agreement, the Company shall immediately cease any existing activities, discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement parties conducted heretofore with respect to an SPAC any Acquisition ProposalTransaction.
(e) Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.4 by any Representative or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations affiliate of the Company or any effort or attempt of its Subsidiaries shall be deemed to be a breach of this Section 5.4 by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalCompany.
Appears in 2 contracts
Sources: Merger Agreement (Vector Merger Corp), Merger Agreement (Vestcom International Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC (a) The Company shall not, and nor shall direct it permit or authorize any of its Subsidiaries or any officer, director, employee, accountant, counsel, financial advisor, agent or other representative of the Sponsor and Company or any of its controlled Affiliates and its and their respective officersSubsidiaries (collectively, directors and Representatives not the “Company Representatives”) to, directly or indirectly indirectly, (ai) solicit, initiate, facilitate, respond to or pursue encourage, including by way of furnishing non-public information, any inquiryinquiries regarding or relating to, indication of interestor the submission of, proposal or offer relating to an SPAC Acquisition any Takeover Proposal, (bii) participate in or continue any discussions or negotiations with negotiations, furnish to any third-party with respect to, or furnish or make available, Person any information concerning SPAC or data relating to the Company or its Subsidiaries, provide access to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to of the businesses, properties, assets books, records or personnel employees of SPACthe Company or its Subsidiaries or take any other action, in each such case for regarding or to facilitate the purpose making of encouraging any proposal that constitutes, or facilitating an SPAC Acquisition Proposal or may reasonably be expected to lead to, any Takeover Proposal, (ciii) enter into any binding letter of intent, memorandum of understanding, binding arrangementagreement in principle, acquisition agreement, merger agreement or other similar definitive agreement, agreement or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement commitment with respect to any Takeover Proposal (an SPAC “Alternative Acquisition Agreement”) or agree to, approve, endorse or resolve to recommend or approve any Takeover Proposal, or except in each case as otherwise specifically provided in Section 7.2(c); (div) grant any waiver, amendment waiver or release under any confidentiality agreement standstill or similar agreement; (v) take any action to exempt any Person from the restrictions on “business combinations” contained in Section 203 of Delaware Law or otherwise knowingly facilitate cause such restrictions not to apply, or (vi) authorize or direct any Company Representative to take any such inquiriesaction; provided, proposalshowever, discussionsthat nothing contained in this Section 7.2(a) or any other provision hereof shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company’s stockholders a position required by Rules 14d-9 and 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (B) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company Board, after consultation with its outside counsel, is required under applicable Law in order to comply with its fiduciary duties, or negotiations (C) notifying any Person solely of the existence of and restrictions under the provisions of this Section 7.2, provided that the Company may not, except as permitted by Section 7.2(b) or (c), withdraw or modify, or propose to the public or any effort Third Party (other than the Company’s agents and representatives) to withdraw or attempt by modify, its approval or recommendation of this Agreement or the transactions contemplated hereby, including the Merger, or approve or recommend, or propose to the public or any Person Third Party (other than the Company’s agents and representatives) to makeapprove or recommend any Takeover Proposal, an SPAC or enter into any Alternative Acquisition ProposalAgreement. From and after Upon execution of this Agreement, the date hereof, SPAC Company shall, and it shall direct any of cause the Sponsors Company Representatives and its controlled Affiliates and its and their respective officers, directors and Representatives Subsidiaries to, immediately cease and terminate all cause to be terminated any existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to any Takeover Proposal. Notwithstanding any of the foregoing restrictions set forth in this Section 7.2(a), nothing in this Agreement shall prevent the Company or the Company Board from furnishing (or causing to be furnished), prior to, but not after, the time the vote is taken with respect to the approval of the Company Voting Proposal at the Company Meeting, information concerning its business, properties or assets, which information is not of greater scope, area or detail than was provided to Parent, to any Person or group pursuant to a confidentiality agreement with terms and conditions substantially similar to those of the Confidentiality Agreement, and may negotiate and participate in discussions and negotiations with such Person or group who has made a bona fide, written Takeover Proposal, but only if: (w) such Takeover Proposal was made after the date of this Agreement (it being understood that such a Takeover Proposal made after the date of this Agreement by a Person who has made a Takeover Proposal prior to the date of this Agreement shall be considered a new Takeover Proposal made after the date of this Agreement) and none of the Company, its Subsidiaries and their representatives has violated any Persons of the restrictions set forth in this Section 7.2 (other than immaterial violations that have not (1) directly or indirectly resulted in the making of such Takeover Proposal or (2) otherwise had an adverse impact on Parent’s rights under this Section 7.2) with respect to such Person making the Takeover Proposal; (x) such Person or group has submitted a Takeover Proposal that the Company Board has determined (after consultation with outside legal counsel) either (i) constitutes a Superior Proposal (as defined below) or (ii) is more favorable to the Company’s stockholders from a financial point of view than the Merger and is reasonably likely to lead to a Superior Proposal; and (y) the Company Board determines in good faith, after consultation with its outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law. The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of, any confidentiality, standstill or similar agreement to which the Company is a party or under which the Company has any rights. The Company will promptly (and in any event within one (1) Business Day) notify Parent telephonically and in writing of the existence of any proposal, discussion, negotiation or inquiry received by the Company that is or could reasonably be expected to constitute a Takeover Proposal, and the Company will promptly communicate in writing to Parent the terms and conditions of any such proposal, discussion, negotiation or inquiry which it may receive and a copy thereof and the identity of the Person making the same. The Company shall inform Parent within one (1) Business Day after any change to the material terms of any such Takeover Proposal. Within one (1) Business Day after any determination by the Company Board that a Takeover Proposal constitutes a Superior Proposal, the Company shall deliver to Parent and Merger Sub a written notice advising them of such determination, specifying the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, and providing Parent and Merger Sub with a copy of the Superior Proposal. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other Person or group which was not previously provided to Parent.
(b) Neither the Company Board nor any committee thereof shall withdraw or modify, or propose to the public or any Third Party (other than the Group CompaniesCompany’s agents and representatives) to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Shareholders Company Board Recommendation, unless the Company Board shall have determined in good faith, after consultation with its outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law.
(c) Neither the Company Board nor any committee thereof shall (i) approve or recommend, or propose to the public or any Third Party (other than the Company’s agents and their Representativesrepresentatives) to approve or recommend, any Takeover Proposal or (ii) enter into any Alternative Acquisition Agreement (other than a confidentiality agreement expressly permitted by and in accordance with Section 7.2(a)). Notwithstanding the foregoing, prior to, but not after, the time the vote is taken with respect to the adoption of this Agreement at the Company Meeting, the Company Board may make a change in the Company Board Recommendation in a manner adverse to Parent or Merger Sub (a “Change in Company Recommendation”) and/or approve or recommend a Superior Proposal, and, in connection with such Superior Proposal, make any approvals, consents or actions to exempt such Takeover Proposal from any Takeover Statute, and the Company may enter into an Alternative Acquisition Agreement with respect to a SPAC Acquisition ProposalSuperior Proposal in connection with the termination of this Agreement, in each case if (A) the Company shall have received a Superior Proposal which is pending at the time the Company determines to take such action, (B) the Company Board shall have determined in good faith, after consultation with its outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law and (C) at least three (3) Business Days shall have passed following Parent’s receipt of written notice from the Company (the “Adverse Recommendation Notice”) advising Parent that the Company Board has received such a Superior Proposal which it intends to accept or recommend or advising Parent that it intends to make a Change in Company Recommendation, specifying the material terms and conditions of such Superior Proposal and the other information required by Section 7.2(a) (it being understood and agreed that any material amendment to the financial terms or other material terms of such Superior Proposal shall require a new Adverse Recommendation Notice and a new three (3) Business Day period), and Parent does not make an offer within such three (3) Business Day period that the Company Board shall have concluded in its good faith judgment, after consultation with its financial advisors and its outside counsel, is at least as favorable to the Company’s stockholders as such Superior Proposal (it being agreed that the Company Board shall convene a meeting to consider any such offer by Parent promptly following the receipt thereof and that the Company Board will not withhold, withdraw or modify its recommendation to the Company’s stockholders in favor of the Company Voting Proposal until the earlier of the receipt of Parent’s revised offer or three (3) Business Days after receipt by Parent of the Adverse Recommendation Notice).
(d) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Netopia Inc), Merger Agreement (Netopia Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt No Solicitation by any Person to make, an SPAC Acquisition ProposalCompany. From and after the date hereofof this -------------------------- Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, SPAC shallCompany and its subsidiaries will not, and shall direct nor will they authorize or permit any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, immediately cease and terminate all directly or indirectly, (i) solicit, initiate, encourage (including by way of furnishing information) or induce the making, submission or announcement of any Company Acquisition Proposal, (ii) participate in any discussions and 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 constitutes or may reasonably be expected to lead to, any Company Acquisition Proposal, (iii) engage in discussions with any Persons (other than the Group Companies, the Shareholders and their Representatives) person with respect to a SPAC any Company Acquisition Proposal., except as to the existence of these provisions, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Company Acquisition Transaction (as defined below); provided, however, that prior to the approval of this Agreement and the Merger at the Company Shareholders' Meeting, this Section 5.5(a) shall not prohibit Company from furnishing nonpublic information regarding Company and its subsidiaries to, or entering into discussions with, any person or group who has submitted to Company prior to the date twenty business days before the publicly announced date of the Company Shareholders' Meeting (and not withdrawn) an unsolicited, written, bona fide Company Acquisition Proposal that the Board of Directors of Company
Appears in 2 contracts
Sources: Merger Agreement (Egghead Com Inc), Merger Agreement (Onsale Inc)
No Solicitation. From (a) Notwithstanding anything else in this Section 5.02 (but otherwise subject to the terms of this Agreement), during the period beginning on the date hereof of this Agreement and continuing until 11:59 p.m. (Central Time) on the Merger Closing date that is 30 days after the date of execution of this Agreement (the “Original Solicitation Period End Date”), as such date may be extended to the Solicitation Period End Date (as defined below) with respect to only a Continuing Party pursuant to the second proviso of this Section 5.02(a), the Company, and any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, and any Affiliate of, the Company or any Company Subsidiary shall be permitted (acting under the direction of the Company Board, or, if earlierapplicable, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, Special Committee) to (i) directly or indirectly (a) solicit, initiate, initiate or pursue any inquiry, indication encourage the submission of interest, proposal a Company Takeover Proposal and (ii) directly or offer relating to an SPAC Acquisition Proposal, (b) indirectly participate in or continue any discussions or negotiations with regarding, and furnish to any third-party Person information with respect to, and take any other action to facilitate any inquiries or furnish or make available, the making of any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalproposal that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal; provided, however, that (A) the Company shall not, nor shall it authorize or permit any Company Subsidiary, Representative or Affiliate of the Company or any Company Subsidiary to: (i) provide to any thirdPerson any non-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement public information with respect to the Company or any Company Subsidiary without first entering into an SPAC Acquisition ProposalAcceptable Confidentiality Agreement with such Person, or (dii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or anti-takeover Laws, or (iii) approve or enter into any letter of intent, memorandum of understanding, agreement in principle, commitment, merger agreement, acquisition agreement or otherwise knowingly facilitate similar agreement relating to any Company Takeover Proposal or that conflicts with this Agreement or requires or would reasonably be expected to require, the Company to abandon this Agreement (each, an “Acquisition Agreement”) other than an Acceptable Confidentiality Agreement or a non-binding letter of intent or term sheet entered into prior to the Original Solicitation Period End Date described in clause (B) of the second proviso of this Section 5.02(a), and (B) the Company shall promptly provide to Parent any non-public information concerning the Company or any Company Subsidiary that is provided to such Person, its Representatives or Affiliates which was not previously provided to Parent, its Representatives or Affiliates; and provided, further, that the Solicitation Period End Date shall be extended until the date provided in the immediately following sentence solely with respect to any Person (a “Continuing Party”) that has submitted to the Company a bona fide detailed written Company Takeover Proposal prior to the end of the Original Solicitation Period End Date that (1) shall (A) provide that each issued and outstanding share of Company Common Stock shall be converted into the right to receive in excess of $13.55, (B) include a non-binding letter of intent or term sheet reflecting the material terms of such Company Takeover Proposal (which the Company may or may not sign), (C) include a draft merger agreement (which may be provided in the form of this Agreement marked to show a draft of the changes such Continuing Party proposes to make to this Agreement), (D) include a detailed non-binding term sheet setting forth the proposed terms of any proposed equity and/or debt financing required to fund the purchase price in connection with any such Company Takeover Proposal, and (E) include any draft voting or other ancillary agreements with the Company or any of its Affiliates that comprise a material component of such Company Takeover Proposal and (2) the Company Board (or, if applicable, the Special Committee), determines, by 11:59 p.m. (Central Time) on the day that is two (2) calendar days after the Original Solicitation Period End Date (the “Continuing Party Determination Date”), in good faith, after consultation with its outside counsel and its independent financial advisors, is a Superior Company Proposal or would reasonably be expected to lead to a Superior Company Proposal by or prior to 11:59 p.m. (Central Time) on the date that is 45 days after the execution of this Agreement as such date may be extended with respect to a particular Continuing Party pursuant to the following sentence (the “Solicitation Period End Date”). The Original Solicitation Period End Date solely with respect to any such Continuing Party shall be deemed to be extended until, and terminate at, the Solicitation Period End Date, unless on or prior to such date, the Company shall have delivered a Superior Proposal Notice with respect to a Superior Company Proposal proposed by such Continuing Party pursuant to Section 8.05(b) hereof, in which case the Solicitation Period End Date solely with respect to such Continuing Party shall be deemed to be extended until, and shall terminate on, 11:59 p.m. (Central Time) on the date that is two (2) Business Days following the last day of the last Notice Period (including any new Notice Period(s) that may be required if any Continuing Party makes any modification to the financial terms or other material terms of a Company Takeover Proposal prior to the Solicitation Period End Date as extended hereby) described in Section 8.05(b) relating to such Superior Company Proposal. Notwithstanding anything in this Section 5.02(a) to the contrary, any Continuing Party shall cease to be a Continuing Party for all purposes hereunder at such time as any bona fide detailed written Company Takeover Proposal made by such Continuing Party is withdrawn, terminated, expires or at any time fails to satisfy the requirements of this Section 5.02(a) in all respects, with respect to the terms of clause (1)(A) of the second proviso of the first sentence of this Section 5.02(a), and otherwise in all material respects.
(b) Subject to the terms hereof (including Section 5.02(a) with respect to a Continuing Party and Sections 5.02(c), 5.02(d) and 8.05), from the day following the Original Solicitation Period End Date until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary, or any Representative or Affiliate of, the Company or any Company Subsidiary to, (i) directly or indirectly solicit, initiate, propose, encourage, facilitate or induce any inquiries, discussions, proposals, indications of interest, submissions or announcements of any Company Takeover Proposal, or take any other action to encourage, facilitate or assist any inquiries or discussions, or the making of any proposal, indication of interest, submission or announcement, in each case, that constitutes or could reasonably be expected to lead to, any Company Takeover Proposal, (ii) approve or enter into any Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) directly or indirectly participate or engage in any discussions or negotiations regarding any Company Takeover Proposal, (iv) furnish to any Person (other than Parent, Sub or any Representative of Parent or Sub) any non-public information relating to the Company or any of the Company Subsidiaries, or afford to any Person (other than Parent, Sub and any Representatives of Parent and Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of the Company Subsidiaries, in any such case, which could reasonably be expected to induce the making, proposal, submission or announcement of, or which could reasonably be expected to encourage, facilitate or assist, a Company Takeover Proposal or any inquiries or discussions, or the making of any proposal, indication of interest, submission or announcement, in any such case, which could reasonably be expected to lead to a Company Takeover Proposal (it being acknowledged and agreed by Parent that the terms of this clause (iv) shall not be deemed breached by any disclosure by the Company of non-public information in the ordinary course of business consistent with past practice to any customer or supplier solely in its capacity as a customer or supplier and not in the context of a Company Takeover Proposal, it being further acknowledged and agreed that any provision of such information to any customer or supplier when acting in the capacity of a potential maker of a Company Takeover Proposal shall be deemed a breach of the terms of this clause (iv) (unless such information is provided pursuant to and in compliance with the terms of Section 5.02(c)), or (v) grant any waiver, amendment or release under any standstill or confidentiality agreement, or anti-takeover Laws, or otherwise take any action with the primary purpose of facilitating any effort or attempt by any Person to make, an SPAC Acquisition make a Company Takeover Proposal. From and after Without limiting the date hereofforegoing, SPAC shall, and shall direct it is agreed that any violation of the Sponsors restrictions set forth in the preceding sentence by any Company Subsidiary, Representative or Affiliate of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 5.02(b) by the Company. Subject to Section 5.02(a) (with respect to only a Continuing Party) and its controlled Affiliates and its and their respective officersSection 5.02(c), directors and Representatives tobeginning on the day following the Original Solicitation Period End Date, the Company shall immediately cease and terminate cause to be terminated any existing solicitation, encouragement, discussion, negotiation or other action permitted by Section 5.02(a) conducted by the Company, any Company Subsidiary or any of their respective Representatives or Affiliates regarding any proposal that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal (other than with respect to a Person that is then a Continuing Party). The Company shall, (X) on the Continuing Party Determination Date, deliver a written notice to each Person that submitted a Company Takeover Proposal prior to the Original Solicitation Period End Date (other than with respect to a Person that is, as of such date, a Continuing Party, or with respect to a Person which has made a Company Takeover Proposal and with which the Company would be allowed to participate in discussions and negotiations with respect to such Company Takeover Proposal pursuant to and in accordance with Section 5.02(c), and subject to the last sentence of Section 5.02(a)) to the effect that, the Company is ending all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) such Person with respect to any Company Takeover Proposal, effective on and from such date, and the notice shall also request that such Person promptly return or destroy all confidential information concerning the Company and the Company’s Subsidiaries, and (Y) provide Parent with (A) the number of Persons that have been qualified as Continuing Parties and (B) copies of all documents referred to in clauses (B) through (E) of the second proviso in Section 5.02(a); provided, however, that, subject to Section 5.02(e) and Section 8.05(b), the Company may (1) limit the identity of the Continuing Party to whether it is a SPAC Acquisition strategic or financial Person (including making any necessary redactions in any of the copies referred to in clause (B) above) and (2) exclude the identity of the financing sources, and pricing terms of the financing proposed to be provided by such financing sources, in connection with the Company Takeover Proposal proposed by any such Continuing Party.
(c) Notwithstanding anything to the contrary in Section 5.02(b), but subject to the other terms of this Agreement (including Section 5.02(a) and Sections 5.02(d), 5.02(f) and 8.05) from the day after the Original Solicitation Period End Date to the date on which the Company Stockholder Approval is received, the Company may in response to an unsolicited, bona fide written Company Takeover Proposal which did not result from a breach of Section 5.02, and which the Company Board (acting through the Special Committee, if applicable) determines, in good faith, (1) after consultation with its outside counsel and its independent financial advisors, constitutes or would reasonably be expected to lead to, a Superior Company Proposal and (2) would be reasonably likely to result in a breach of their fiduciary duties to the Company’s stockholders if they fail to take the actions described in clauses (x) and (y) below, take the following actions (or instruct their Representatives to take the following actions): (x) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement and (y) participate in discussions or negotiations with such Person, its Representatives and Affiliates regarding any such Company Takeover Proposal. The parties agree that nothing herein shall prevent the Company or its Representatives from directing any Persons to this Agreement from the day following the Original Solicitation Period End Date until the receipt of the Company Stockholder Approval or, if earlier, the date of termination of this Agreement pursuant to the terms hereof.
(d) Subject to Section 8.01(d) and 8.01(f), commencing on the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, neither the Company nor the Company Board (acting through the Special Committee, if applicable) nor any committee thereof shall (i) withhold, withdraw, amend, qualify or modify, in a manner adverse to Parent or Sub, or propose publicly to withhold, withdraw, amend, qualify or modify, in a manner adverse to Parent or Sub, or change to a neutral position or no position, the Company Board Recommendation, (ii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, or publicly take a neutral position or no position with respect to, any Company Takeover Proposal, (iii) make any public statement or take any public action in connection with the Company Stockholders Meeting that is inconsistent with the Company Board Recommendation, or (iv) fail to include the Company Board Recommendation in the Proxy Statement (any of the actions or events described in clauses (i) through (iv), an “Adverse Recommendation Change”). Notwithstanding anything in this Section 5.02(d) to the contrary (but otherwise subject to the terms of this Agreement), at any time prior to receipt of the Company Stockholder Approval, the Company Board (or, if applicable, the Special Committee) may, make an Adverse Recommendation Change: (i) in response to a Superior Company Proposal, but only after compliance with Section 8.05(b); or (ii) in response to an Intervening Event if, but only if (A) a majority of the directors of the Company Board (acting through the Special Committee, if applicable) shall have determined in their good faith judgment, after consultation with outside legal counsel and consultation with an independent financial advisor, that the failure to make an Adverse Recommendation Change in response to such Intervening Event would result or would reasonably be expected to result in a breach of their fiduciary duties to the stockholders of the Company under the DGCL (any such determination, an “Intervening Event Determination”); (B) the Company promptly, but in any event within one (1) day of making any Intervening Event Determination, notifies Parent in writing that the Company Board (acting through the Special Committee, if applicable) has made an Intervening Event Determination (any such notice, an “Intervening Event Notice”) and provides Parent with a description of the Intervening Event in reasonable detail; (C) for a period of at least five (5) days following receipt by Parent of an Intervening Event Notice (such time period, the “Intervening Event Notice Period”), the Company has, if requested by Parent, negotiated in good faith with Parent to permit Parent to make a proposal or to amend the terms of the Transactions or this Agreement; (D) at the end of the Intervening Event Notice Period, and taking into account any proposals (in
Appears in 2 contracts
Sources: Merger Agreement (Sport Supply Group, Inc.), Merger Agreement (Sage Parent Company, Inc.)
No Solicitation. From (a) Neither the date hereof until the Merger Closing Date or, if earlier, the termination Company nor any of this Agreement in accordance with Article XII, SPAC shall notits Subsidiaries shall, and the Company shall direct any of the Sponsor and use its controlled Affiliates and reasonable best efforts to cause its and their respective directors, officers, directors employees, Affiliates (including holders of 10% or greater of the outstanding Company Ordinary Shares), accountants, consultants, legal counsel, financial advisors, and Representatives investment bankers not to, directly or indirectly indirectly: (ai) solicit, initiate, initiate or pursue knowingly facilitate or knowingly encourage the submission of any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Company Alternative Proposal, (bii) participate in any negotiations regarding, or continue furnish to any Person any nonpublic information (or grant access to any of the properties, assets or nonpublic records of the Company or any of its Subsidiaries) with respect to the Company or any of its Subsidiaries in connection with, or in furtherance of, any Company Alternative Proposal, (iii) engage in discussions with any Person with respect to any Company Alternative Proposal, except to notify such Person as to the existence of the provisions of this Section 6.3, (iv) withhold, withdraw or modify (or publicly propose or announce any intention or desire to withhold, withdraw or modify), in a manner adverse to Parent, the Company Recommendation, (v) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention to agree to, accept, approve, endorse or recommend) any Company Alternative Proposal, (vi) enter into any letter of intent or similar document or any agreement or commitment providing for any Company Alternative Proposal (except for confidentiality agreements permitted under Section 6.3(b)), (vii) enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement, including the Merger, or breach its obligations under this Agreement, or (viii) agree to do any of the foregoing; provided, however, that it is understood and agreed that any determination or action by the Board of Directors of the Company permitted under Section 6.3(b), Section 6.3(c), Section 6.3(d), Section 6.3(e) or Section 8.1(g) shall not be deemed to be a breach or violation of this Section 6.3(a).
(b) Notwithstanding the limitations set forth in Section 6.3(a), if the Company receives an unsolicited written Company Alternative Proposal (other than as a result of its material breach of Section 6.3(a)) that the Board of Directors of the Company determines in good faith, after consultation with the Company’s outside legal and financial advisors, constitutes or would be reasonably likely to result, after the taking of any of the actions referred to below, in a Company Superior Proposal, the Company may, or the Company may direct its Representatives to, (i) contact the third party making such Company Alternative Proposal or its Representatives to clarify the terms and conditions of such proposal; (ii) furnish nonpublic information with respect to the Company and its Subsidiaries to the third party (and its Representatives) making such Company Alternative Proposal, if, and only if, (A) all such information provided to such third party has previously been made available to Parent or is made available to Parent concurrently with such information being provided to such third party and (B) prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement on terms substantially similar to the terms of the Confidentiality Agreement (it being understood that such confidentiality agreement may exclude from any standstill restriction the making by such third party of a Company Alternative Proposal in accordance with the terms of this Section 6.3 with the consent of the Board of Directors of the Company); and (iii) participate in discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any the third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition the Company Alternative Proposal.
(c) From and after the execution of this Agreement, the Company shall promptly, and in any event within 48 hours following receipt thereof, advise Parent orally and in writing of the receipt, directly or indirectly, of any Company Alternative Proposal (including any material modification to such proposal) and any determination by the Board of Directors of the Company under Section 6.3(b), which notification shall identify the offeror and include a copy of any such proposal, if it is in writing, or a written summary of the material terms and conditions of the Company Alternative Proposal. In addition, the Company shall keep Parent reasonably informed on a reasonably current basis, and in any event within 48 hours following receipt thereof, with respect to any material development relating to such proposal, including the entering into discussions or negotiations and the results of such discussions or negotiations and any changes in material terms or conditions based thereon. In the event of any Company Change in Recommendation, the Company shall provide Parent with the Company’s shareholder lists and, following a Company Change in Recommendation, Parent may contact the Company’s shareholders and prospective investors without regard to the limitations set forth in Section 6.7, subject to Parent’s compliance with applicable Law.
(d) The Board of Directors of the Company may (A) change, withhold or withdraw (or modify or amend in a manner adverse to Parent) the Company Recommendation, or publicly propose to change, withhold or withdraw (or modify or amend in a manner adverse to Parent) the Company Recommendation, or (B) recommend or approve, or propose publicly to recommend or approve, any Company Alternative Proposal that constitutes a Company Superior Proposal (any such action, a “Company Change in Recommendation”) if:
(i) the Board of Directors of the Company has concluded in good faith, after consultation with the Company’s outside legal and financial advisors, that the failure of the Board of Directors of the Company to effect a Company Change in Recommendation is reasonably likely to be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s shareholders under applicable Law;
(ii) the Company has provided Parent six Business Days’ written notice advising Parent of the material terms and conditions of such Company Superior Proposal and its intention to make a Company Change in Recommendation (a “Recommendation Change Notice”) (it being understood and agreed that no such notice is required for a Company Change in Recommendation not made in response to or as a result of a Company Superior Proposal); and
(iii) the Board of Directors of the Company has taken into account any revised proposal made by Parent to the Company within six Business Days of providing Parent with a Recommendation Change Notice (the “Recommendation Change Notice Period”) and again has determined in good faith, after consultation with its legal and financial advisors, that the proposal from the third party that was described in the Recommendation Change Notice remains a Company Superior Proposal; provided that, if the third party whose proposal was described in the Recommendation Change Notice modifies or amends such proposal to increase the consideration to be paid or amends other material terms during the Recommendation Change Notice Period, a new six Business Day period shall begin for purposes of this Section 6.3(d)(iii) prior to the Board of Directors of the Company making a Company Change in Recommendation pursuant to this Section 6.3(d).
(e) Nothing contained in this Section 6.3 or this Agreement shall prohibit the Company or its Board of Directors from (i) taking and disclosing to the Company’s shareholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, it being understood that a “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communication to the shareholders of the Company) shall not be deemed to be or constitute a Company Change in Recommendation; (ii) complying with Item 1012(a) of Regulation M-A under the Exchange Act; (iii) making any disclosure to its shareholders if, in the good faith judgment of the Board of Directors of the Company (after consultation with outside legal counsel), failure to so disclose is reasonably likely to be inconsistent with applicable Law; or (iv) informing any Person of the existence of the provisions contained in this Section 6.3. In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Company that describes the Company’s receipt of a Company Alternative Proposal and the operation of this Agreement with respect thereto shall not be deemed a withdrawal or modification, or proposal by the Board of Directors of the Company to withdraw or modify, the Company Recommendation, an adoption or recommendation with respect to such Company Alternative Proposal, or a Company Change in Recommendation.
(f) The Company shall immediately cease and cause to be terminated any existing negotiations or discussions with any third party conducted heretofore with respect to any Company Alternative Proposal. The Company shall, if it has not already done so, promptly request, to the extent it has a contractual right to do so, that each Person, if any, that has heretofore executed a confidentiality agreement within the 12 months immediately prior to the date of this Agreement in connection with such Person’s consideration of a Company Alterative Proposal return or destroy all confidential information or data heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries.
(g) As used in this Agreement, “Company Alternative Proposal” shall mean any unsolicited bona fide proposal or offer made, or any indication of interest in making a proposal or offer, by any Person or group prior to the receipt of the Company Shareholder Approval (other than a proposal or offer by Parent or any of its Subsidiaries) for (i) a merger or business combination or similar transaction, including any single or multi-step transaction or series of related transactions, with the Company or any of its Subsidiaries; (ii) the direct or indirect acquisition (by purchase, tender offer, exchange offer or otherwise) by any Person of 20% or more of the assets of the Company and its Subsidiaries, taken as a whole; (iii) the acquisition by any Person or group of 20% or more of the issued and outstanding Company Ordinary Shares or any other class of capital stock of the Company or any of its Subsidiaries (or any securities convertible into any of the foregoing); (iv) the exclusive, long term license of Trademarks of the Company and its Subsidiaries to any third party if such license would be material to the Company and its Subsidiaries, taken as a whole; (v) any recapitalization transaction in which the shareholders of the Company receive a payment or distribution in the form of cash, debt securities or securities with a limited life; or (vi) any combination of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (FGX International Holdings LTD), Merger Agreement (Essilor International /Fi)
No Solicitation. (a) From the date hereof of this Agreement until the Merger Closing Date or, if earlier, Effective Time or the termination of this Agreement in accordance with Article XIIVIII, SPAC except as specifically permitted in Sections 6.03(d), 6.03(f) or 6.03(g)(ii), the Company shall not, and nor shall direct it authorize or permit any of the Sponsor and its controlled Affiliates and Subsidiaries or its and or their respective officers, directors and Representatives not to, directly or indirectly indirectly: (ai) solicit, initiateinitiate or knowingly encourage any inquiries, offers or proposals that constitute, or pursue are reasonably likely to lead to, any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, ; (bii) participate engage in or continue any discussions or negotiations with with, furnish or disclose any third-party with respect information or data relating to the Company or any of its Subsidiaries to, or furnish or make availablein response to a request therefor, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party give access to the businesses, properties, assets or personnel the books and records of SPACthe Company or its Subsidiaries to, in each case for any Person that has made or, to the purpose Knowledge of encouraging or facilitating an SPAC the Company, may be considering making any Acquisition Proposal or otherwise in connection with an Acquisition Proposal; (ciii) grant any waiver or release under any standstill or similar contract with respect to the Shares, any Company Equity Securities or any properties or assets of the Company or its Subsidiaries; (iv) withdraw, modify or amend the approval or recommendation of the Offer, the Merger or this Agreement by the Board of Directors of the Company; (v) approve, endorse or recommend any Acquisition Proposal; (vi) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, arrangement, understanding or contract relating to any Acquisition Proposal; or (vii) take any action to exempt or make not subject to the provisions of Section 203 of the DGCL or any other agreement with respect state takeover statute or state Law that purports to an SPAC Acquisition Proposallimit or restrict business combinations or the ability to acquire or vote shares, or any Person (dother than Parent and its Subsidiaries) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort action taken thereby, which Person or attempt by any Person action would have otherwise been subject to make, an SPAC Acquisition Proposal. From the restrictive provisions thereof and after the date hereof, SPAC not exempt therefrom.
(b) The Company shall, and shall direct any cause each of the Sponsors its Subsidiaries and instruct its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and any existing solicitations, discussions, negotiations or other activity with any Persons (other than Person being conducted with respect to any Acquisition Proposal on the Group Companiesdate hereof. The Company shall promptly inform its Representatives who have been engaged or are otherwise providing assistance in connection with the transactions contemplated by this Agreement of the Company’s obligations under this Section 6.03. Without limiting the foregoing, the Shareholders Company agrees that any breach of the restrictions set forth in this Section 6.03, including any failure of such Representatives to comply with any instructions referred to above, by any of such Representatives or any Affiliate or Subsidiary of the Company shall be deemed to be a breach by the Company of this Section 6.03.
(c) The Company shall notify Parent as soon as practicable (but in any event within 24 hours) after receipt of (i) any Acquisition Proposal or indication that any Person is considering making an Acquisition Proposal, (ii) any request for information relating to the Company or any of its Subsidiaries or (iii) any request for access to the properties, assets or the books and their Representativesrecords of the Company or its Subsidiaries that the Company reasonably believes is reasonably likely to lead to an Acquisition Proposal. The Company shall provide Parent promptly with the identity of such Person, a detailed description of such Acquisition Proposal, indication or request and, if applicable, a copy of such Acquisition Proposal. The Company shall keep Parent fully informed on a reasonably current basis of the status and details of any such Acquisition Proposal, indication or request.
(d) Notwithstanding the foregoing, prior to the Acceptance Date, nothing in this Agreement shall prevent the Company or its Board of Directors from:
(i) engaging in discussions or negotiations with, or furnishing or disclosing any information relating to, the Company or any of its Subsidiaries or, in response to a request therefor, giving access to the properties, assets or the books and records of the Company or any of its Subsidiaries to, any Person who has made a bona fide written and unsolicited Acquisition Proposal made after the date hereof if the Board of Directors determines that such Acquisition Proposal is reasonably likely to result in a Superior Proposal, but only so long as (x) the Board of Directors has (A) acted in good faith and by a majority of the members of its entire Board of Directors, (B) determined, after consultation with its legal and financial advisors, that such Acquisition Proposal is reasonably likely to result in a Superior Proposal and (C) determined, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable Laws (in the case of (B) and (C), taking into account any adjustments to the terms and conditions of this Agreement, the Offer or the Merger offered in writing by Parent in response to such Acquisition Proposal), and (y) the Company (A) enters into a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Confidentiality Agreement and (B) concurrently discloses or makes available the same information to Parent as it makes available to such Person in accordance with Section 6.03(e); and
(ii) subject to compliance with Section 6.03(d)(i), entering into a definitive agreement with respect to a SPAC Superior Proposal (and taking any action required under Section 203 of the DGCL or any other state takeover Law in connection with such Superior Proposal), but only so long as (A) the Board of Directors, acting in good faith and by a majority of the members of the entire Board of Directors, has approved such definitive agreement, (B) the Board of Directors has determined, after consultation with its outside legal and financial advisors, that such bona fide written and unsolicited Acquisition Proposal constitutes a Superior Proposal, (C) the Board of Directors of the Company has determined, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable Laws and (D) the Company terminates this Agreement pursuant to, and after complying with all of the provisions of, Section 8.01(f).
(e) If the Company or any of its Subsidiaries or its or their Representatives receives a request for information from a Person who has made an unsolicited bona fide written Acquisition Proposal involving the Company and the Company is permitted to provide such Person with information pursuant to this Section 6.03, the Company will provide to Parent a copy of the confidentiality agreement with such Person promptly upon its execution and provide to Parent a list of, and copies of, the information provided to such Person concurrently with its delivery to such Person and promptly provide Parent with access to all information to which such Person was provided access, in each case only to the extent not previously provided to Parent.
(f) The Board of Directors of the Company shall not (i) approve, endorse or recommend, or propose to approve, endorse or recommend, any Acquisition Proposal or (ii) enter into any agreement in principle or understanding or a contract relating to an Acquisition Proposal, unless the Company terminates this Agreement pursuant to, and after complying with all of the provisions of, Section 8.01(f).
(g) Notwithstanding the foregoing, (i) the Board of Directors of the Company shall be permitted to disclose to the stockholders of the Company a position with respect to an Acquisition Proposal required by Rule 14e-2(a), Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act and (ii) the Board of Directors of the Company may withdraw, modify or amend its recommendation of the Offer, the Merger and this Agreement at any time if it determines, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable Laws.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
No Solicitation. From (a) Neither the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct Company nor any of its Subsidiaries shall (and the Sponsor Company and its controlled Affiliates and its and Subsidiaries shall cause their respective officers, directors directors, employees, representatives and Representatives agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly (a) indirectly, encourage, solicit, initiateparticipate in or initiate discussions or negotiations with, or pursue provide any inquiryinformation to, indication any corporation, partnership, person or other entity or group (other than Parent or any of interest, its affiliates or representatives) concerning any proposal or offer relating to acquire all or a substantial part of the business and properties of the Company or any of its Subsidiaries or any capital stock of the Company or any of its Subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an SPAC "Acquisition Proposal"), except that nothing contained in this Section 5.4 or any other provision hereof shall prohibit the Company or the Company's Board of Directors from (i) taking and disclosing to the Company's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's shareholders as, in the good faith judgment of the Board of Directors, after receiving advice from outside counsel, is required under applicable law; provided that, except as permitted by this Section 5.4, neither the Board of Directors of the Company nor any committee thereof shall (x) approve or recommend or propose to approve or recommend any Acquisition Proposal, (by) participate enter into any agreement with respect to any Acquisition Proposal, or (z) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or continue the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger. The Company will immediately cease any existing activities, discussions or negotiations with any third-party parties conducted heretofore with respect toto any of the foregoing.
(b) Notwithstanding the foregoing, or prior to the acceptance of Shares pursuant to the Offer, the Company may furnish or make available, any information concerning SPAC its business, properties or assets to any third party corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which the Board of Directors determines in good faith can be fully financed and (y) in the opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations could reasonably be expected to cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law (an SPAC Acquisition Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal, or "). The Company shall within one business day following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any thirdmaterial non-public information regarding the Company provided to any other party access which was not previously provided to Parent. At any time after two business days following notification to Parent of the businessesCompany's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.4(b), properties, assets the Board of Directors may withdraw or personnel modify its approval or recommendation of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or Offer.
(c) In the event of a Superior Proposal which (i) is to be paid entirely in cash and (ii) is not subject to any financing condition or contingency, the Company may enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other an agreement with respect to an SPAC Acquisition Proposalsuch Superior Proposal no sooner than four days after giving Parent written notice of its intention to enter into such agreement; provided that the Purchaser or Parent has not, or prior to the expiration of such four-day period, advised the Company of its intention to raise the Offer Price to match such Superior Proposal and has waived the Financing Condition (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person unless the sole reason for the Financing Condition not to make, an SPAC Acquisition Proposal. From and after be waived is the date hereof, SPAC shall, and shall direct any failure of the Sponsors Company to satisfy its obligations under Sections 5.11 and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than 5.13 hereof). Upon expiration of such four-day period without such action by the Group CompaniesPurchaser or Parent, the Shareholders and their Representatives) Company may enter into an agreement with respect to a SPAC Acquisition Proposalsuch Superior Proposal (with the bidder and on terms no less favorable than those specified in such notification), provided it shall concurrently with entering into such agreement pay or cause to be paid to Parent the amount specified in Section 8.1(b) hereof.
Appears in 2 contracts
Sources: Merger Agreement (Phonetel Technologies Inc), Merger Agreement (Communications Central Inc)
No Solicitation. From (a) Subject to the date hereof until the Merger Closing Date or, if earlier, the termination provisions of this Agreement in accordance with Article XIISection 5.22, SPAC shall Keystone will not, and shall direct any of the Sponsor will cause its Subsidiaries not to, and will cause Keystone’s and its controlled Affiliates and its and their Subsidiaries’ respective officers, directors directors, employees, Affiliates, agents and Representatives representatives not to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or solicit or knowingly encourage any inquiries with respect to, or pursue the making of, any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (bii) participate except as permitted below, (A) engage in negotiations or continue discussions with or provide any information or data to, any Person relating to an Acquisition Proposal, (B) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, or (C) execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal (other than a confidentiality agreement contemplated by Section 5.22(b)). Keystone shall, and shall cause each of its officers, directors, employees, Affiliates, agents and representatives to, (i) immediately cease any solicitations, discussions or negotiations with any third-party Person (other than TCBX) conducted heretofore with respect toto any Acquisition Proposal and promptly request return or destruction of confidential information related thereto, (ii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its officers, directors, employees, Affiliates, agents and representatives is a party and (iii) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the approval of the Keystone shareholders, in the event that Keystone receives a bona fide Acquisition Proposal that is not received in violation of this Section 5.22, Keystone and its Board may participate in discussions or negotiations with, or furnish or make availableany information to, any Person making such Acquisition Proposal and its agents and representatives or potential sources of financing that need to be involved in such discussion if Keystone’s Board determines in good faith, after consultation with its counsel and financial advisor, that such Person is reasonably likely to submit to Keystone a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the board of directors’ fiduciary duties; provided, however, that, prior to providing any nonpublic information to such Person or participating in discussions or negotiations with such Person, Keystone shall have entered into a confidentiality agreement with such Person on terms that are substantially similar to the confidentiality provisions of the Confidentiality Agreement and that any nonpublic information concerning SPAC Keystone and its Subsidiaries provided to such Person, to the extent not previously provided to TCBX, is promptly provided to TCBX. In addition, nothing herein shall restrict Keystone from complying with its disclosure obligations with regard to any third party relating to an SPAC Acquisition Proposal under applicable Law.
(c) Keystone will promptly (and in any event within 48 hours) notify TCBX of the receipt by Keystone of any Acquisition Proposal, or provide to any third-party access which notice shall include the material terms of and identity of the Person(s) making such Acquisition Proposal. Keystone will (subject to the businesses, properties, assets or personnel Keystone Board’s fiduciary duties) keep TCBX reasonably informed of SPAC, in each case for the purpose status and material terms and conditions of encouraging or facilitating an SPAC any such Acquisition Proposal and of any material amendments or proposed material amendments thereto.
(cd) Keystone’s Board may, at any time prior to obtaining the approval of the Keystone shareholders, (i) approve, endorse or recommend a Superior Proposal or enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar a definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, a Superior Proposal or (dii) grant modify or amend in a manner adverse to TCBX or withdraw the Keystone Recommendation ((i) or (ii) above being referred to as a “Change in Recommendation”), provided that (x) prior to such Change in Recommendation, Keystone’s Board shall determine, in good faith (after consultation with its counsel), that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (y) such Change in Recommendation is in connection with a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account any waiveraction taken by TCBX pursuant to Section 5.22(e).
(e) Notwithstanding anything to the contrary contained in this Agreement, amendment or release under any confidentiality Keystone may not terminate this Agreement to enter into a definitive agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Superior Proposal unless (i) it notifies TCBX in writing of its intention to take such action at least three (3) Business Days prior to taking such action, specifying the material terms of any applicable Superior Proposal, identifying the Person(s) making such Superior Proposal and providing TCBX an unredacted copy of all of the agreements with the party making such Superior Proposal, (ii) TCBX does not make, after being provided with reasonable opportunity to negotiate with Keystone and its agents and representatives, within such three (3) Business Day period, irrevocable adjustments in the terms and conditions of this Agreement that Keystone’s Board determines, in good faith after consultation with its counsel and financial advisors, is at least as favorable to Keystone’s shareholders as such Superior Proposal and (iii) Keystone is not in material breach of this Section 5.22.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Third Coast Bancshares, Inc.), Agreement and Plan of Reorganization (Third Coast Bancshares, Inc.)
No Solicitation. (a) From and after the date hereof of this Agreement and until the Merger Closing Date or, if earlier, earlier of the termination of this Agreement in accordance with Article XIIpursuant to Section 8.1 and the Effective Time, SPAC shall notneither Target nor its directors, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not toemployees, representatives or agents will, directly or indirectly indirectly, or otherwise: (ai) take any action to solicit, initiate, seek, continue, knowingly encourage, support, assist, participate in any negotiations or pursue communications regarding, or cooperate with any inquiry, indication of interest, proposal or offer from, or furnish any information to, any third party regarding any merger, recapitalization or consolidation with or involving Target or its Subsidiaries or any acquisition or exclusive license of fifty percent (50%) or more of the Target Capital Stock or of the stock or equity of Target’s Subsidiaries or any material assets (any of the foregoing an “Acquisition Proposal”); or (ii) agree to, enter into, accept, approve or recommend any Acquisition Proposal; provided, however, that Target shall not be limited pursuant to this paragraph with respect to the Excluded Business. Target represents and warrants that it has the legal right to terminate any pending discussions or negotiations relating to an SPAC Acquisition Proposal, Proposal (other than in respect of the Excluded Business alone) without payment of any fee or other penalty.
(b) participate Target shall notify Acquiror promptly (and no later than twenty-four (24) hours) after receipt by Target (or its Representatives) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party for access to the businesses, properties, assets books or personnel records of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt Target by any Person to makeor entity that informs Target that it is considering making, or has made, an SPAC Acquisition Proposal; provided, however, that this sentence shall not apply to an Acquisition Proposal that solely relates to the Excluded Business. From Such notice shall be made orally and after the date hereof, SPAC shall, in writing and shall direct any indicate in reasonable detail the identity of the Sponsors offeror and its controlled Affiliates the terms and its and their respective officersconditions of such proposal, directors and Representatives toinquiry or contact, immediately cease and terminate all discussions and negotiations with any Persons (other than including the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalproposed price.
Appears in 2 contracts
Sources: Merger Agreement (INPHI Corp), Agreement and Plan of Merger (INPHI Corp)
No Solicitation. From Until the date hereof until the Merger Closing Date or, if earlier, earlier of (x) the termination of this Agreement in accordance with Article XIIpursuant to Section 10.1 and (y) the Final Closing Date (the period from the date of this Agreement until such earlier date is referred to herein as, SPAC shall not, the "EXCLUSIVITY PERIOD"):
(i) neither the Company and shall direct its affiliates nor any of their respective subsidiaries (collectively, the Sponsor "RESTRICTED PARTIES" and its controlled Affiliates and its and each a "RESTRICTED PARTY") shall, directly or indirectly, initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or would reasonably be expected to result in, a Competing Transaction (as defined below), or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of their respective officers, directors directors, employees, consultants or agents or any investment banker, financial advisor, attorney, accountant or other representative retained by any Restricted Person to take any such action; and Representatives not to(ii) the Company shall notify ABRY and Sandler in writing (as promptly as practicable, directly but in any event, within two days) if any written or indirectly (a) solicit, initiate, oral request for information or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel a Competing Transaction is made and shall keep ABRY and Sandler promptly advised of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any all such inquiries, requests and proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct provide ABRY and Sandler with a copy of any such written requests or proposals and a summary of all oral proposals or requests. As used herein, the term "COMPETING TRANSACTION" shall mean the offer or sale of equity or equity-linked securities of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (Company to a third party other than (i) the Group CompaniesPurchasers or (ii) between the Initial Closing Date and the Final Closing Date, other stockholders of the Shareholders Company so long as the offer or sale to such other stockholders does not include, individually or in the aggregate, more than 5,000 shares of Series B Preferred Stock and their Representatives) with respect to a SPAC Acquisition Proposal160,000 Warrants.
Appears in 2 contracts
Sources: Series B Convertible Preferred Stock and Warrant Purchase Agreement (Penton Media Inc), Series B Convertible Preferred Stock and Warrant Purchase Agreement (Sandler Capital Management)
No Solicitation. From The Company agrees that, except as expressly permitted by this Section 6.03, neither the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct Company nor any of its Subsidiaries shall, nor shall the Sponsor and Company or any of its controlled Affiliates and Subsidiaries authorize or permit any of its and or their respective officers, directors and Representatives not directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to, directly or indirectly indirectly:
(ai) solicit, initiate, solicit or pursue knowingly facilitate or encourage, including by way of furnishing non-public information, any inquiry, indication inquiries or the making of interest, any proposal or offer relating (including any proposal or offer to holders of Company Stock) that constitutes or that could reasonably be expected to lead to an SPAC Acquisition Proposal;
(ii) enter into, (b) engage in, continue or otherwise participate in or continue any discussions or negotiations with regarding, or provide any thirdnon-party with respect public information or data to any Person relating to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, except solely to notify such Person of the existence of this Section 6.03;
(iii) agree to, approve, endorse, recommend or provide to consummate any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding contract or agreement in principle, or any other agreement (other than an Acceptable Confidentiality Agreement entered into in compliance with respect this Section 6.03) or commitment contemplating or otherwise relating to an SPAC any Acquisition Proposal, or ;
(div) grant any waiver, amendment or release under any confidentiality standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such standstill or similar agreement or Takeover Statute to the extent permitted thereby to do so); or
(v) otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, make an SPAC Acquisition Proposal. From and after the date hereof, SPAC The Company shall, and shall direct any of the Sponsors and cause its controlled Affiliates Subsidiaries and its and their respective its Subsidiaries’ officers, directors and other Representatives to, cease immediately cease and terminate all any discussions and negotiations or negotiations, if any, with any Persons Person (other than the Group Companies, the Shareholders Parent and Merger Subsidiary and their respective Affiliates and Representatives) conducted prior to the execution of this Agreement with respect to any Acquisition Proposal and the Company shall promptly request each Person (other than Parent) that has theretofore executed a SPAC confidentiality agreement in connection with such Person’s consideration of an Acquisition ProposalProposal to return (or if permitted by the applicable agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Ingram Micro Inc)
No Solicitation. The Company and Seller shall, and shall cause their Representatives and Affiliates to, cease and terminate any existing activities, discussions or negotiations with any parties (other than Buyer) conducted heretofore with respect to any action that would constitute an Acquisition Proposal. From the date hereof until through the Merger earlier to occur of the Closing Date or, if earlier, or the termination of this Agreement in accordance with pursuant to Article XIIVIII, SPAC shall not, and shall direct any of neither Seller nor the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not toCompany shall, directly or indirectly (a) through an Affiliate or Representative or otherwise), solicit, initiateinitiate or conduct any discussions or negotiations with, or pursue provide any information to or otherwise cooperate in any other way with, or facilitate or encourage any effort to attempt to, or enter into any agreement or understanding with, any Person or group of Persons (other than Buyer and its Affiliates) regarding any Acquisition Proposal. The Company and Seller agree not to waive any rights under, and not modify or amend, any confidentiality, non-disclosure or other similar agreements with any Person (other than Buyer and its Affiliates) that has received confidential information of the Group Companies in connection with any Acquisition Proposal. The Company shall immediately (but in any event, within 24 hours) notify Buyer orally and in writing after receipt by the Company (or, to the Knowledge of the Company, by any of the Company’s Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, indication expression of interest, proposal or offer relating that constitutes, or would reasonably be expected to lead to, an SPAC Acquisition Proposal, (biii) participate in or continue any discussions or negotiations with other notice that any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to Person is considering making an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (civ) enter into any binding understandingrequest for non-public information relating to the Company or for access to any of the properties, binding arrangement, acquisition agreement, merger agreement books or similar definitive agreement, records of the Company by any Person or any letter Persons other than Buyer and its Representatives. Such notice shall describe (A) the material terms and conditions of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (dB) grant any waiver, amendment the identity of the Person or release under any confidentiality agreement or otherwise knowingly facilitate Persons making any such inquiriesAcquisition Proposal, proposalsinquiry, discussionsexpression of interest, proposal, offer, notice or request. The Company shall keep Buyer fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Buyer a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if in writing, or negotiations or any effort or attempt by any Person to makea reasonable written summary thereof, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalif not in writing.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Shutterfly Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives (a) The Stockholder will not to, directly or indirectly (ai) solicit, initiateinitiate or encourage (or authorize any person to solicit, initiate or pursue encourage) any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (bii) participate in or continue any discussions discussion or negotiations with regarding, or furnish to any third-party other Person any information with respect to, or furnish or make available, otherwise cooperate in any information concerning SPAC to any third party relating to an SPAC Acquisition Proposalway with, or provide to any third-party access to the businessesparticipate in, properties, assets facilitate or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or encourage any effort or attempt by any other Person to do or seek the foregoing, (iii) approve, endorse or recommend any of the foregoing, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any of the foregoing. The Stockholder shall immediately (and in any event within 24 hours) advise the Parent and Merger Subsidiary (orally and in writing) of the terms of any communications he or any of his affiliates may receive relating to any Acquisition Proposal (including, without limitation, the identify of the party making any such Acquisition Proposal).
(b) The Stockholder shall not, nor shall such Stockholder permit any affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any affiliate to act in concert with any person to make, an SPAC Acquisition Proposal. From and after or in any manner participate in, directly or indirectly, a "solicitation" of "proxies" (as such terms are used in the date hereof, SPAC shall, and shall direct any rules of the Sponsors Securities and its controlled Affiliates and its and their respective officersExchange Commission) or powers of attorney or similar rights to vote, directors and Representatives to, immediately cease and terminate all discussions and negotiations with or seek to advise or influence any Persons (other than the Group Companies, the Shareholders and their Representatives) person with respect to the voting of, any shares of Company Common Stock in connection with any vote or other action on any matter, other than to recommend that Stockholders of the Company vote in favor of the Merger and the Merger Agreement and otherwise as expressly provided by Article One of this Agreement.
(c) Such Stockholder shall not, nor shall such Stockholder permit any affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any affiliate to act in concert with any person to, deposit any shares of Company Common Stock in a SPAC Acquisition Proposalvoting trust or subject any shares of Company Common Stock to any arrangement or agreement with any person with respect to the voting of such shares of Company Common Stock, except as provided by Article One of this Agreement.
(d) Nothing herein shall prohibit any action permitted by Section 6.4 of the Merger Agreement from being taken by any party thereto.
Appears in 2 contracts
Sources: Stockholder Voting and Option Agreement (Interlott Technologies Inc), Stockholder Voting and Option Agreement (Gtech Holdings Corp)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier(a) Except as provided in this Section 5.2(a), the termination of this Agreement in accordance with Article XII, SPAC Company shall not, and shall direct not permit or authorize any of its Subsidiaries or any director, officer, employee, investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of the Sponsor and Company or any of its controlled Affiliates and its and their respective officers, directors and Representatives not toSubsidiaries, directly or indirectly indirectly, to (ai) solicit, initiate, endorse, or pursue knowingly encourage or facilitate any inquiry, indication of interest, proposal or offer relating with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to an SPAC lead to any Acquisition Proposal, (bii) enter into, continue or otherwise participate in any discussions or continue negotiations regarding, or furnish to any Person any non-public information or data with respect to, or otherwise cooperate in any way with, any Acquisition Proposal, (iii) subject to Section 5.2(b), approve, recommend, agree to or accept, or publicly propose to approve, recommend, agree to or accept, any Acquisition Proposal or (iv) resolve, publicly propose or agree to do any of the foregoing. The Company shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its Subsidiaries to, (A) immediately cease and cause to be terminated all existing discussions or negotiations with any third-Person conducted heretofore with respect to any Acquisition Proposal, (B) request and confirm the prompt return or destruction of all confidential information previously furnished with respect to any Acquisition Proposal and (C) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its Affiliates or Representatives is a party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Stockholder Approval, (1) the Company receives a written Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 5.2, (3) the Company Board determines in good faith that such Acquisition Proposal constitutes or provide is reasonably likely to result in a Superior Proposal and (4) the Company Board determines in good faith (and after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (x) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal; provided that prior to furnishing any such information the Company shall have first received from the Person making such Acquisition Proposal an executed confidentiality agreement containing terms substantially similar to, and not materially less favorable to the Company than, those set forth in the Confidentiality Agreement (as defined below); provided that any non-public information provided to any third-party Person given such access shall have been previously provided to Parent or shall be provided to Parent prior to or concurrently with the businesses, properties, assets time it is provided to such Person and (y) participate in discussions or personnel of SPAC, in each case for negotiations with the purpose of encouraging or facilitating an SPAC Person making such Acquisition Proposal regarding such Acquisition Proposal or take the actions specified in clause (cC) of the preceding sentence.
(b) Except as provided in this Section 5.2(b), neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Parent or Merger Sub) the approval, recommendation or declaration of advisability by the Company Board or any such committee of this Agreement, the Merger or any of the other transactions contemplated hereby, (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal, (C) resolve, agree or publicly propose to take any such actions or (D) submit this Agreement to its stockholders without recommendation (each such action set forth in this Section 5.2(b)(i) being referred to herein as an “Adverse Recommendation Change”) or (ii) (A) cause or permit the Company to enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract (other than a confidentiality agreement pursuant to and consistent with the terms of Section 5.2(a)) (each, an “Alternative Acquisition Agreement”) constituting or related to, or which is intended to or is reasonably likely to lead to, any other Acquisition Proposal or (B) resolve, agree or publicly propose to take any such actions. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Stockholder Approval, (1) the Company receives a written Acquisition Proposal that has not been withdrawn that the Company Board believes in good faith to be bona fide, (2) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 5.2, (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes a Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law, the Company Board may (x) effect an Adverse Recommendation Change or (y) terminate this Agreement pursuant to Section 7.1(d)(2) in order to enter into a definitive binding agreement with respect to an SPAC Acquisition such Superior Proposal; provided, however, that the Company may not take either of the actions described in clause (x) or (y) above unless (I) the Company promptly notifies Parent in writing at least five Business Days before taking that action of its intention to do so, and specifying the reasons therefor, including the terms and conditions of, and the identity of any Person making, such Superior Proposal, or and contemporaneously furnishing a copy of the relevant Alternative Acquisition Agreement and any other relevant transaction documents (d) grant it being understood and agreed that any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations to the financial terms or any effort other material term of such Superior Proposal shall require a new written notice by the Company and a new five Business Day period) and (II) prior to the expiration of such five Business Day period, Parent does not make a proposal to adjust the terms and conditions of this Agreement that the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that the failure to take such action is no longer reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law. During the five Business Day period prior to its effecting an Adverse Recommendation Change or attempt by any Person terminating this Agreement as referred to makeabove, an SPAC Acquisition Proposal. From and after the date hereof, SPAC Company shall, and shall direct cause its financial and legal advisors to, negotiate with Parent in good faith (to the extent Parent seeks to negotiate) regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by Parent.
(c) In addition to the obligations of the Company set forth in Section 5.2(a) and (b), the Company promptly, and in any event within 24 hours of receipt, shall advise Parent in writing in the event the Company or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal, (ii) any request for information, discussion or negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal or (iii) any inquiry, proposal or offer that is reasonably likely to lead to an Acquisition Proposal, in each case together with the terms and conditions of such Acquisition Proposal, request, inquiry, proposal or offer and the identity of the Person making any such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish Parent with a copy of such Acquisition Proposal (or, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). The Company shall keep Parent informed in all material respects on a timely basis of the status and details (including, within 24 hours after the occurrence of any material amendment, modification, development, discussion or negotiation) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation. Without limiting any of the Sponsors foregoing, the Company shall promptly (and in any event within 24 hours) notify Parent orally and in writing if it determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.2(a) or (b) and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(d) The Company agrees that any material violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its controlled Affiliates Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a material breach of this Agreement by the Company.
(e) The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to comply with any of the terms of this Section 5.2, and represents that neither it nor any of its Subsidiaries is a party to any such agreement.
(f) Except in connection with effecting an Adverse Recommendation Change pursuant to Section 5.2(b), the Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective officersAffiliates) from the restrictions on “business combinations” or any similar provision contained in any Takeover Law or otherwise cause such restrictions not to apply, directors and Representatives to, immediately cease and terminate all discussions and negotiations with or agree to do any Persons of the foregoing.
(other than g) Notwithstanding anything herein to the Group Companiescontrary, the Shareholders Company and their Representativesthe Company Board shall be permitted to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; provided, however, that compliance with such rules will in no way limit or modify the effect that any action pursuant to such rules would otherwise have under this Agreement (it being understood, however, that a customary “stop, look and listen” communication by the Company Board or any committee thereof pursuant to Rule 14d-9(f) with respect to a SPAC Acquisition Proposalunder the Exchange Act shall not constitute an Adverse Recommendation Change).
(h) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
No Solicitation. From (a) Neither the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct Company nor any of its Subsidiaries shall (and the Sponsor and Company shall use its controlled Affiliates and best efforts to cause its and their respective officers, directors directors, employees, representatives and Representatives agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly (a) indirectly, encourage, solicit, initiateparticipate in or initiate discussions or negotiations with, or pursue provide any inquiryinformation to, indication any corporation, partnership, person or other entity or group (other than Parent, any of interest, its affiliates or representatives) concerning any proposal or offer relating to acquire all or a substantial part of the business and properties of the Company or any of its Subsidiaries or any capital stock of the Company or any of its Subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an SPAC "Acquisition Proposal"), except that nothing contained in this Section 5.4 or any other provision hereof shall prohibit the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law, provided that the Company may not, except as permitted by Section 5.4(b), withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend any Acquisition Proposal, (b) participate in or continue enter into any agreement with respect to any Acquisition Proposal. The Company will immediately cease any existing activities, discussions or negotiations with any third-party parties conducted heretofore with respect toto any of the foregoing.
(b) Notwithstanding the foregoing, or prior to the acceptance of Shares pursuant to the Offer, the Company may furnish or make available, any information concerning SPAC the Company and its Subsidiaries to any third party corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after consulting with a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and (y) in the opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would reasonably be expected to cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law (an SPAC Acquisition Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company will immediately notify Parent of the existence of any proposal or inquiry received by the Company, the identity of the party making 41 such proposal or inquiry, and the terms (both initial and modified) of any such proposal or inquiry (and will disclose any written materials delivered in connection therewith) and the Company will keep Parent reasonably informed of the status (including amendments or proposed amendments) of any such proposal or inquiry. The Company will promptly provide to Parent any thirdmaterial non-public information regarding the Company provided to any other party access which was not previously provided to Parent. At any time after two business days following notification to Parent of the businessesCompany's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.4(b), properties, assets the Board of Directors may withdraw or personnel modify its approval or recommendation of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) Offer and may enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other an agreement with respect to an SPAC Acquisition a Superior Proposal, provided it shall concurrently with entering into such agreement pay or cause to be paid to Parent the Termination Fee (das defined below) grant plus any waiver, amendment or release under any confidentiality amount payable at the time for reimbursement of expenses pursuant to Section 8.1(b). If the Company shall have notified Parent of its intent to enter into an agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalSuperior Proposal in compliance with the preceding sentence and has otherwise complied with such sentence, the Company may enter into an agreement with respect to such Superior Proposal (with the bidder and on terms no less favorable than those specified in such notification) after the expiration of the initial two business day period without any further notification.
Appears in 2 contracts
Sources: Merger Agreement (Riddell Sports Inc), Merger Agreement (Varsity Spirit Corporation)
No Solicitation. (a) From and after the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XIIuntil the Effective Time, SPAC shall not, and shall direct neither Target nor any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not toSubsidiaries shall, directly or indirectly through any officer, director, employee, representative or agent of Target or any of its Subsidiaries or otherwise: (ai) solicit, initiate, or pursue encourage any inquiryinquiries or proposals that constitute, indication of interestor could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, share exchange, business combination, sale of all or substantially all assets, sale of shares of capital stock or similar transactions involving Target or its Subsidiaries other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals an “Acquisition Proposal”); (ii) engage or participate in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal; or (iii) agree to, enter into, accept, approve or recommend any Acquisition Proposal. Target represents and warrants that it has the legal right to terminate any pending discussions or negotiations relating to an SPAC Acquisition Proposal, Proposal without payment of any fee or other penalty.
(b) participate Target shall notify Acquiror as promptly as possible (and no later than 48 hours) after receipt by Target or any of its Subsidiaries (or their advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party for access to the businesses, properties, assets books or personnel records of SPAC, in each case for the purpose Target or any of encouraging its Subsidiaries by any person or facilitating an SPAC Acquisition Proposal entity that informs Target or any of its Subsidiaries (cor their advisors) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementthat it is considering making, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to makehas made, an SPAC Acquisition Proposal. From Such notice shall be made orally and after the date hereof, SPAC shall, in writing and shall direct any indicate in reasonable detail the identity of the Sponsors offeror and its controlled Affiliates the terms and its and their respective officersconditions of such proposal, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalinquiry or contact.
Appears in 2 contracts
Sources: Merger Agreement (Silicon Laboratories Inc), Agreement and Plan of Reorganization (Silicon Laboratories Inc)
No Solicitation. From The Company agrees that, during the date hereof until the Merger Closing Date or, if earlier, the termination term of this Agreement in accordance Agreement, it will not negotiate with Article XII, SPAC shall any person other than Parent with respect to the acquisition of the Company or its Subsidiaries and it will not, and shall direct will not permit any of the Sponsor and its controlled Affiliates and its and their respective officers, directors directors, employees, affiliates, agents or representatives (including, without limitation, investment bankers, attorneys and Representatives not to, directly or indirectly accountants) to (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposalinitiate contact with, (b) make, solicit or encourage any inquiries or proposals from, (c) enter into, or participate in or continue in, any discussions or negotiations with any third-party with respect towith, (d) disclose, directly or furnish or make availableindirectly, any information not customarily disclosed concerning SPAC the business and properties of the Company or its Subsidiaries to or (e) afford any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, Company's or its Subsidiaries properties, books and records to any person (other than Parent, Sub or their respective directors, officers, employees, agents and representatives) in connection with any possible proposal relating to (i) the disposition of its respective businesses or all or substantially all of its assets (except for disposition of assets in the ordinary course of business consistent with past practice), (ii) the acquisition of equity or personnel debt securities of SPACthe Company or its Subsidiaries (except in connection with the exercise of options, as permitted in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal Section 5.3(a)) or (ciii) enter into any binding understandingthe merger, binding arrangementshare exchange or business combination, acquisition agreement, merger agreement or similar definitive agreement, acquisition transaction of or involving the Company or its Subsidiaries with any person other than Parent (each or any letter combination of intent, memorandum of understanding or the foregoing a "Company Competing Transaction"); provided that the Company may (x) furnish information (subject to a confidentiality agreement in principlereasonably customary form) to, and negotiate or otherwise engage in discussions with, any other agreement party who delivers a written proposal for a Company Competing Transaction if and so long as the Board of Directors of the Company determines in good faith, based upon the written opinion of its outside legal counsel, that failing to take such action would reasonably be expected to constitute a breach of the fiduciary duties of the Board and (y) take a position with respect to an SPAC Acquisition Proposalthe Merger or a Company Competing Transaction, or (d) grant any waiveramend or withdraw such position, amendment in compliance with Rule 14d-9 or release Rule 14e-2 promulgated under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person the Exchange Act with regard to make, an SPAC Acquisition Proposala Company Competing Transaction. From and after the date hereofexecution of this Agreement, SPAC shallthe Company and each of its Subsidiaries will immediately notify Parent orally, and shall direct subsequently confirm in writing, all the relevant details relating to all inquiries and proposals which it may receive relating to any such matters. Subject to the foregoing, the Company will not, and will not permit any of the Sponsors and its controlled Affiliates and its and their respective officersrepresentatives or Subsidiaries to enter, directors and Representatives toat any time, immediately cease and terminate all into or participate in any discussions and or negotiations regarding, or accept, any proposal for a Company Competing Transaction received by them from a third party or that a third party expresses a desire to communicate with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalthem.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Southern Mineral Corp), Merger Agreement (Amerac Energy Corp)
No Solicitation. From (a) The Company has ceased, and has instructed its officers, directors, employees, investment bankers, attorneys, accountants or other advisors, agents or representatives that have been involved in the negotiation of the transactions contemplated hereby or any proposal received since January 1, 2014 that would have constituted an Acquisition Proposal if received following the date hereof (collectively, “Representatives”) to cease, and caused to be terminated all existing discussions, negotiations and communications with any persons or entities with respect to any offer or proposal or potential offer or proposal relating to any transaction or proposed transaction or series of related transactions, other than the transactions contemplated hereby, involving any Acquisition Proposal. Except as provided in Section 5.2(b) or 5.2(c) below, from the date of this Agreement until the Merger Closing Date or, if earlier, the earlier of termination of this Agreement in accordance with Article XIIor the Effective Time, SPAC the Company shall not, not and shall direct any of the Sponsor not authorize its Representatives (and shall use its controlled Affiliates and reasonable best efforts not to permit its and their respective officersRepresentatives), directors and Representatives not to, to directly or indirectly through another person, (ai) solicit, initiate, solicit or pursue knowingly encourage (including by way of furnishing any inquiry, indication of interest, proposal or offer non-public information relating to an SPAC the Company or any of its subsidiaries), or knowingly induce or knowingly take any other action which is intended to lead to the making, submission or announcement of any Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cii) enter into any binding understandingagreement with respect to any Acquisition Proposal, binding arrangement(iii) engage in negotiations or discussions with, acquisition agreementor provide any information or data to, merger agreement any person (other than Parent or similar definitive agreementany of its affiliates or representatives) relating to any Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or other Contract contemplating an Acquisition Proposal or (v) resolve to do any of the foregoing. The Company shall, within 24 hours of the date hereof, terminate access by any third party to any data room (virtual or actual) containing any of the Company’s confidential information. Within two (2) business days from the date hereof, the Company shall request the return or destruction of all confidential, non-public information provided to third parties prior to the date hereof that have, since January 1, 2014, entered into confidentiality agreements relating to a possible Acquisition Proposal with the Company or any of its subsidiaries. Notwithstanding the foregoing, nothing contained in this Section 5.2(a) or in Section 6.4 or any other provision hereof shall prohibit the Company or the Company Board of Directors from (A) taking and disclosing to the Company’s stockholders its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or (B) making any disclosure to its stockholders if the Company Board of Directors determines in good faith that the failure to make such disclosure would be inconsistent with the Company Board of Directors’ fiduciary duties to the Company’s stockholders under applicable Law; provided, however, that (1) in no event shall this Section 5.2(a) affect the obligations specified in Section 5.2(b) or 5.2(c) and (2) any such disclosure (other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board of Directors with respect to this Agreement or an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Company Board of Directors 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 of Directors, without disclosing any Adverse Recommendation Change.
(b) Notwithstanding the foregoing, prior to the date on which the Company has received Company Stockholder Approval, if the Company receives a written Acquisition Proposal with respect to the Company from a third party and the receipt of such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly induced in violation of Section 5.2(a), then the Company may furnish information concerning its business, properties or assets to any person pursuant to a confidentiality agreement with terms relating to the confidential information of the Company no less favorable, in principlethe aggregate, to the Company than those contained in the Confidentiality Agreement and may negotiate and participate in discussions and negotiations with such person concerning an Acquisition Proposal if the Company Board of Directors determines in good faith by resolution duly adopted that such Acquisition Proposal constitutes or is reasonably likely to constitute a Superior Proposal. The Company shall promptly (and in any case within 24 hours and prior to furnishing information concerning the Company to such third party) (i) provide Parent notice (A) of the receipt of any Acquisition Proposal and (B) of any inquiries, proposals or offers received by, or any discussions or negotiations sought to be initiated or continued with, the Company or its Representatives concerning an Acquisition Proposal or that could reasonably be expected to lead to an Acquisition Proposal and disclose the identity of the other party and the material terms of such inquiry, offer, proposal or request and, in the case of written materials, provide copies of such materials and (ii) provide Parent with copies of all written information concerning the Company provided by the Company to such party to the extent not previously provided or made available to Parent. The Company will keep Parent reasonably informed on a reasonably prompt basis (and, in any case within 24 hours of any material development) of the status and details (including material amendments and material proposed amendments) of any such Superior Proposal or other inquiry, offer, proposal or request. The Company shall promptly (and in any case within 24 hours), following a determination by the Company Board of Directors that an Acquisition Proposal is a Superior Proposal, notify Parent of such determination.
(c) Except as permitted by this Section 5.2(c), neither the Company Board of Directors nor any committee thereof shall (i) withdraw, qualify or modify, or propose to withdraw, qualify or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board of Directors or any such committee of this Agreement or the Merger, (ii) approve or recommend or publicly propose to approve or recommend any Acquisition Proposal or (iii) enter into any agreement (other than a confidentiality agreement in compliance with Section 5.2(b)) with respect to any Acquisition Proposal (any action described in this sentence being referred to as a “Adverse Recommendation Change”). Notwithstanding the foregoing, prior to the date on which the Company has received Company Stockholder Approval, the Company Board of Directors may effect an Adverse Recommendation Change if (x) the Company receives an Acquisition Proposal that was not initiated, solicited, knowingly encouraged or knowingly induced, or the result of any action knowingly taken which was intended to lead to the making, submission or announcement of such Acquisition Proposal in violation of Section 5.2(a) that the Company Board of Directors concludes constitutes a Superior Proposal or (y) an Intervening Event occurs and as a result thereof the Company Board of Directors determines in good faith that the failure to effect an Adverse Recommendation Change would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law; provided that (1) prior to effecting such an Adverse Recommendation Change with respect to a Superior Proposal, (A) the Company has notified Parent in writing that it intends to effect an Adverse Recommendation Change; (B) the Company has provided Parent a copy of all proposed definitive agreements (including all financing documents if applicable) with respect to such Superior Proposal; (C) if requested to do so by Parent, for a period of four (4) business days following delivery of such notice, the Company shall have discussed and negotiated in good faith, and shall have made its Representatives available to discuss and negotiate in good faith, with Parent’s representatives any bona fide proposed modifications to the terms and conditions of this Agreement; and (D) no earlier than the end of such four (4) business day period, the Company Board of Directors shall have concluded, after considering the terms of any proposed amendment or modification to this Agreement proposed by Parent during such four (4) business day period, that such Superior Proposal still constitutes a Superior Proposal (it being understood and agreed that any change to the financial or other material terms of a proposal that was previously the subject of a notice hereunder shall require a new notice to the Parent as provided above, but with respect to any such subsequent notices references herein to a “four (4) business-day period” shall be deemed references to a “three (3) business day period”) and (2) prior to effecting such an Adverse Recommendation Change with respect to an SPAC Acquisition ProposalIntervening Event, or (dx) grant any waiverthe Company has notified Parent in writing that it intends to effect an Adverse Recommendation Change, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any describing in reasonable detail the reasons for such inquiriesAdverse Recommendation Change; (y) if requested to do so by Parent, proposalsfor a period of four (4) business days following delivery of such notice, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From the Company shall have discussed and after the date hereof, SPAC shallnegotiated in good faith, and shall direct have made its Representatives available to discuss and negotiate in good faith, with Parent’s representatives any bona fide proposed modifications to the terms and conditions of this Agreement; and (z) no earlier than the end of such four (4) business day period, the Company Board of Directors shall have determined in good faith, after considering the terms of any proposed amendment or modification to this Agreement proposed by Parent during such four (4) business day period, that the failure to effect an Adverse Recommendation Change would still be inconsistent with the Company Board of Directors’ fiduciary duties to the Company’s stockholders under applicable Law. Any such Adverse Recommendation Change shall not change the approval of the Sponsors and its controlled Affiliates and its and their respective officersCompany Board of Directors for purposes of causing any state takeover statute or other state Law to be inapplicable to the transactions contemplated by this Agreement, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than including the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalMerger.
Appears in 2 contracts
Sources: Merger Agreement (Hospira Inc), Merger Agreement (Pfizer Inc)
No Solicitation. (a) From the date hereof until and through the Merger Closing Date or, if earlierClosing, the termination of this Agreement in accordance with Article XII, SPAC Company shall not, and nor shall direct it permit its Subsidiaries to, or authorize any of the Sponsor and its controlled Affiliates and its and their respective officers, directors directors, employees, accountants, counsel, investment bankers, financial advisors and Representatives not other representatives ("Representatives") to, (i) directly or indirectly, initiate, solicit or encourage, or take any action to facilitate the making of any Takeover Proposal (defined below), or (ii) directly or indirectly (a) solicit, initiate, engage in negotiations or pursue provide any inquiry, indication of interest, proposal confidential information or offer data to any person relating to an SPAC Acquisition any Takeover Proposal; provided, however, that at any time prior to the date of the Company Shareholders Meeting contemplated by Section 4.5 (the "Applicable Period"), the Company may, in response to a Superior Proposal (as defined below) which was not solicited by it and which did not otherwise result from a breach of this Section 4.6(a), and subject to providing prior written notice of its decision to take such action to Parent (the "Notice") and compliance with Section 4.6(c) following delivery of the Notice (x) furnish information with respect to the Company and/or its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by such party after consultation with its outside counsel) and (y) participate in discussions or negotiations regarding such Superior Proposal.
(b) participate in Neither the Board of Directors of the Company nor any committee thereof shall (x) withdraw or continue any discussions or negotiations with any third-party with respect tomodify, or furnish propose to withdraw or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPACmodify, in each case for a manner adverse to Parent, the purpose approval or recommendation by the Board of encouraging Directors of the Company or facilitating an SPAC Acquisition Proposal any such committee of the Merger or this Agreement, (cy) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or approve any letter of intent, memorandum of understanding or agreement in principle, acquisition agreement or similar agreement (other than a confidentiality agreement in connection with a Superior Proposal which is entered into by such party in accordance with Section 4.6(a)) relating to any other agreement Takeover Proposal (each, an "Acquisition Agreement"), or (z) approve or recommend, or propose to approve or recommend, any Takeover Proposal. Notwithstanding the foregoing, in response to a Superior Proposal which was not solicited by the Company and which did not otherwise result from a breach of Section 4.6(a), the Board of Directors for the Company may (subject to this sentence) terminate this Agreement (and concurrently with or after such termination, if it so chooses, cause the Company to enter into any Acquisition Agreement with respect to an SPAC Acquisition any Superior Proposal), but only at a time that is during the Applicable Period and is after the fifth business day following Parent's receipt of written notice advising Parent that the Board of Directors of the Company has resolved to accept a Superior Proposal (subject to such termination), specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal.
(c) The Company promptly shall advise the Parent orally and in writing of any Takeover Proposal or any inquiry with respect to or that could reasonably be expected to lead to any Takeover Proposal, the identity of the person making any such Takeover Proposal or inquiry and the material terms of any such Takeover Proposal or inquiry. The Company shall keep the Parent fully informed of the status and material terms of any such Takeover Proposal or inquiry.
(d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From The Company and after the date hereof, SPAC shall, and Acquired Companies shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, each immediately cease and terminate cause to be terminated all existing discussions and negotiations negotiations, if any, with any Persons (other than the Group Companies, the Shareholders and their Representatives) persons conducted heretofore with respect to a SPAC Acquisition any Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Interwest Home Medical Inc), Merger Agreement (Interwest Home Medical Inc)
No Solicitation. From (a) Subject to the other clauses of this Section 5.3, from and after the date hereof until the Merger Closing Date Effective Time or, if earlier, the termination of this Agreement in accordance with pursuant to Article XII7, SPAC the Company shall not, and shall direct any of cause the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives Company Subsidiaries not to, directly and shall instruct and use commercially reasonable efforts to cause the Company Representatives (on behalf of the Company or indirectly the Company Subsidiaries) not to, (ai) initiate, solicit, initiateknowingly facilitate (including by providing any non-public information concerning the Company or any Company Subsidiary to any Person or group for the purpose of facilitating any inquiries, proposals or pursue any inquiry, indication of interest, proposal or offer offers relating to an SPAC any Acquisition Proposal) or knowingly encourage the submission or announcement of any inquiries, (b) participate proposals or offers relating to any Acquisition Proposal or engage in or continue any discussions or negotiations with respect thereto (other than informing any third-party with respect toThird Party of the existence of the provisions contained in this Section 5.3) (provided, or furnish or make available, that the Company may ascertain facts from any information concerning SPAC to any third party relating to Person making an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case Proposal for the purpose of encouraging the Company Board’s informing itself about such Acquisition Proposal and the Third Party making it), (ii) approve or facilitating an SPAC recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (iii) withhold, withdraw or rescind (or change or qualify, in a manner adverse to Parent or Merger Sub), or publicly propose to withhold, withdraw or rescind (or change or qualify, in a manner adverse to Parent or Merger Sub), the Company Board Recommendation, including the failure to include the Company Board Recommendation in the Proxy Statement/Prospectus, (iv) enter into any merger agreement, letter of intent or other similar agreement relating to any Acquisition Proposal or (cv) enter into resolve or agree to do any binding understandingof the foregoing (any action set forth in the foregoing clause (ii), binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, (iii) or (dv) grant any waiver(to the extent related to the foregoing clause (ii) or (iii)), amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiriesa “Change of Board Recommendation”). Subject to the other clauses of this Section 5.3, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC Company shall, and shall direct any of cause the Sponsors Company Subsidiaries and its controlled Affiliates shall instruct and its and their respective officers, directors and use commercially reasonable efforts to cause the Company Representatives to, immediately (A) promptly (and, in any event, within 24 hours after the execution of this Agreement) cease and terminate all discussions and negotiations any discussion or negotiation with any Persons (other than Parent and its affiliates and representatives) conducted prior to the Group Companiesdate hereof by the Company, the Shareholders Company Subsidiaries or any of the Company Representatives with respect to any Acquisition Proposal, (B) promptly (and, in any event, within 24 hours after the execution of this Agreement) terminate access by any Third Party to any physical or electronic data room relating to any Acquisition Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal and their Representatives(C) promptly (and in any event within seventy-two (72) hours after the date of this Agreement) request the prompt return or destruction of any confidential information provided to any Third Party within the twelve (12) months immediately preceding the date of this Agreement in connection with any Acquisition Proposal or any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposal (it being understood that, for the avoidance of doubt, to the extent any contact by the Company or any Company Representative with any Person is in furtherance of the Company’s obligations pursuant to this clause (C), such contact shall not violate the other restrictions of this Section 5.3). Any material violations of the restrictions set forth in this Section 5.3 by any Company Subsidiary or any director or executive officer of the Company or any Company Subsidiary shall be deemed to be a material breach of this Section 5.3 by the Company.
(b) Notwithstanding anything to the contrary contained in Section 5.3(a), if at any time following the date hereof and prior to the time that the Company Stockholder Approval is obtained, the Company receives a bona fide written Acquisition Proposal from a Third Party, which Acquisition Proposal was made or renewed on or after the date of this Agreement and does not result from a breach of the obligations set forth in Section 5.3(a), (i) the Company and the Company Representatives shall be permitted to participate in discussions regarding such Acquisition Proposal solely to clarify the terms and conditions of such Acquisition Proposal and (ii) if the Company Board determines in good faith, after consultation with its advisors, based on information then available, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and the failure to take the following actions would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company may (i) furnish information with respect to the Company and the Company Subsidiaries (including nonpublic information) to the Third Party making such Acquisition Proposal, its representatives and potential sources of financing and (ii) participate in discussions or negotiations with the Third Party making such Acquisition Proposal, its representatives and potential sources of financing regarding such Acquisition Proposal (subject to promptly and, in any event, within twenty-four (24) hours, notifying Parent of the status and material details thereof (including copies of any written documentation that is material to such Acquisition Proposal); provided that the Company (A) will not, and will cause the Company Subsidiaries not to, and will instruct the Company Representatives not to, disclose any material nonpublic information to such Person without first entering into an Acceptable Confidentiality Agreement with such Person and (B) will provide to Parent any material nonpublic information concerning the Company or the Company Subsidiaries provided or made available to such other Person that was not previously provided or made available to Parent as promptly as practicable (and, in any event, within twenty-four (24) hours of providing such information to such other Person).
(c) The Company shall promptly (and in any event within twenty-four (24) hours after knowledge of receipt by an executive officer or director of the Company) notify Parent in the event that the Company receives (or obtains Knowledge that any Company Representative has received) any Acquisition Proposal. The Company shall notify Parent promptly (and in any event within twenty-four (24) hours after knowledge of receipt by an executive officer or director of the Company) provide to Parent the identity of the Third Party making such Acquisition Proposal and a copy of such Acquisition Proposal (or, where no such copy is available, a reasonable summary of the material terms and conditions of such Acquisition Proposal). Without limiting the foregoing, the Company shall promptly (and in any event within twenty-four (24) hours after such determination) advise Parent if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.3(b). Thereafter, the Company shall keep Parent informed on a prompt (and, in any event, within twenty-four (24) hours) basis of the status and material details (including amendments or proposed amendments) of any such Acquisition Proposal (including by providing copies of any written documentation material to such Acquisition Proposal).
(d) Notwithstanding anything to the contrary contained in Section 5.3(a), if the Company has received a bona fide written Acquisition Proposal that (i) has not been withdrawn, (ii) did not result from a breach of the obligations set forth in Section 5.3(a) and (iii) that the Company Board determines in good faith, after consultation with its advisors, constitutes a Superior Proposal, the Company Board may at any time prior to the time that the Company Stockholder Approval is obtained, (A) effect a Change of Board Recommendation with respect to such Superior Proposal or (B) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, in either case, subject to the requirements of Section 5.3(f) and, in the case of clause (B), provided, that the Company (x) pays, or causes to be paid, to Intermediate Parent the Termination Fee payable pursuant to Section 7.3(a) prior to or concurrently with such termination and (y) immediately following or concurrently with such termination, enters into a definitive acquisition agreement that documents the terms and conditions of such Superior Proposal.
(e) Notwithstanding anything to the contrary contained in Section 5.3(a), the Company Board may, at any time prior to the time that the Company Stockholder Approval is obtained, and subject to compliance with the requirements of Section 5.3(f), effect a Change of Board Recommendation if (i) the Company Board determines that an Intervening Event has occurred and is continuing and (ii) the Company Board determines in good faith, after consultation with outside counsel, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would be inconsistent with its fiduciary duties under applicable Law.
(f) The Company shall not be entitled to effect a Change of Board Recommendation pursuant to Section 5.3(d) or Section 5.3(e) or terminate this Agreement pursuant to Section 5.3(d) and Section 7.1(f) unless (x) the Company shall have provided to Parent at least three (3) Business Days’ prior written notice (the “Notice Period”) of the Company’s intention to take such action, which notice shall specify the material terms and conditions of such Acquisition Proposal (and shall have provided to Parent a copy of the available proposed transaction agreement to be entered into in respect of such Acquisition Proposal) or details of such Intervening Event, as applicable, and (y):
(i) during the Notice Period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent that would reasonably be expected to (A) obviate the need to effect a Change of Board Recommendation or (B) cause such Acquisition Proposal to no longer constitute a Superior Proposal, as applicable; and
(ii) the Company Board shall have considered in good faith any adjustments or proposed amendments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 a.m., New York City time, on the last day of the Notice Period and shall have determined in good faith, after consultation with its advisors and outside counsel, that the failure to make a Change of Board Recommendation pursuant to Section 5.3(d) or Section 5.3(e) or terminate this Agreement pursuant to Section 5.3(d) and Section 7.1(f), as applicable, would be inconsistent with its fiduciary duties under applicable Law. Any (A) material changes relating to such Intervening Event or (B) material revisions to such Superior Proposal offered in writing by the party making such Superior Proposal, as applicable, shall constitute a new Intervening Event or Acquisition Proposal, as applicable, and, in each case, the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(f) with respect to such new written notice, except that the Notice Period shall be two (2) Business Days with respect thereto, but no such new written notice shall shorten the original Notice Period.
(g) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a SPAC position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties or violate applicable Law. The issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, in which the Company indicates that it has not changed the Company Board Recommendation as of the date of such statement, shall not constitute a Change of Board Recommendation.
(h) Notwithstanding any provision of Section 5.3(a) to the contrary, the Company shall not grant any waiver or release under, or fail to enforce, any standstill or similar agreement; provided, however, at any time prior to obtaining the Company Stockholder Approval, the Company may grant a waiver or release under any standstill agreement, or any provision of any confidentiality or similar agreement with similar effect, (i) if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law or (ii) in response to an Acquisition Proposal made under such circumstances in which the Company is permitted under this Section 5.3 to participate in discussions regarding an Acquisition Proposal, but only to the extent necessary to allow it to pursue or consummate such Acquisition Proposal, subject to the conditions set forth in this Section 5.3. The Company shall provide written notice to Parent of waiver or release of any standstill by the Company, including disclosure of the identities of the parties thereto and a summary of the material circumstances relating thereto. Except for the waiver or release of any standstill, or any provision of any confidentiality or similar agreement with similar effect, as contemplated by this Section 5.3(h), the Company shall not release or permit the release of any Person from, or amend, waive, terminate or modify, and shall not permit the amendment, waiver, termination or modification of, any provision of, any confidentiality or similar agreement or provision to which the Company or any Company Subsidiary is a party or under which the Company or any Company Subsidiary has any rights. The Company shall not, and shall instruct and use commercially reasonable efforts to not permit any Company Representative (on the Company’s behalf) to, enter into any confidentiality or similar agreement subsequent to the date of this Agreement that prohibits the Company from providing to Parent the information specifically required to be provided to Parent pursuant to this Section 5.3.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Taylor Morrison Home Corp), Merger Agreement (AV Homes, Inc.)
No Solicitation. (a) From and after the date hereof of this Agreement until the Merger Closing Date or, if earlier, earlier to occur of the Effective Time or termination of this Agreement pursuant to Article 7, and except as otherwise provided for in accordance with Article XIIthis Agreement, SPAC shall the Company and its Subsidiaries will not, and shall direct nor will they authorize or knowingly permit any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not directors, controlled Affiliates or employees or any of their respective investment bankers, attorneys or other advisors or representatives to, directly or indirectly indirectly: (ai) solicit, initiate, or pursue take any inquiryaction intended to encourage or induce the making, indication submission or announcement of interest, proposal or offer relating to an SPAC any Acquisition Proposal, ; (bii) engage or participate in or continue any discussions or negotiations with any third-party Person (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 furnish or make availabletake any other action intended to facilitate, any information concerning SPAC inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any third party relating to an SPAC Acquisition Proposal; (iii) approve, endorse or provide to recommend any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal Proposal; or (civ) enter into any binding understandingletter of intent or similar document or any contract, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementcommitment contemplating or otherwise relating to any Acquisition Transaction. Notwithstanding the above, prior to the approval of the Merger Proposal at the Company Meetings, nothing contained in this Agreement (including this Section 5.7) shall prohibit the board of directors of the Company, in response to an unsolicited written 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 and after consultation with the Company’s financial advisors and outside legal counsel, concludes that the offer is, or would reasonably be likely to result within 20 (twenty) Business Days of the receipt of such Acquisition Proposal in, 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 to comply with its fiduciary obligations to the Company’s shareholders under applicable Legal Requirements (which, for purposes of this clause (B), shall be deemed to consist of Israeli Legal Requirements and in addition, in order to determine the appropriate standards that would apply to such fiduciary obligations, the board of directors of the Company may also consider Delaware Legal Requirements); and provided further that (x) prior to, or concurrently with, furnishing any letter such information to, or entering into discussions or negotiations with, such party, the Company gives the Parent written notice of intentthe identity of such Person or group and of the Company’s intention to furnish information to, memorandum or enter into discussions or negotiations with, such party and (y) the Company receives from such party an executed confidentiality agreement at least as restrictive as the Confidentiality Agreement (but permitting disclosure to the Parent required under this Agreement); and (z) prior to or contemporaneously with furnishing any such information to such party, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished by the Company to the Parent). The Company and its Subsidiaries will immediately cease any and all existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of understanding the restrictions in this Section 5.7 by any officer, director, controlled Affiliate or agreement in principleemployee of the Company or any of its Subsidiaries or any investment banker, attorney or other representative retained by the Company or any of its Subsidiaries or any other agreement with respect Person who shall have entered into a Voting Undertaking shall be deemed to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt be a breach of this Section 5.7 by any Person to make, an SPAC Acquisition Proposalthe Company. From and after the date hereof, SPAC shall, and shall direct any For purposes of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Saifun Semiconductors Ltd.), Merger Agreement (Saifun Semiconductors Ltd.)
No Solicitation. From (a) Each of the date hereof until Company and the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall notAcquiror shall, and shall direct any of the Sponsor and cause its controlled Affiliates respective Affiliates, Consolidated Subsidiaries, and its and each of their respective officers, directors directors, trustees, managers, employees, consultants, financial advisors, attorneys, accountants and Representatives not other advisors, representatives and agents (collectively, “Representatives”) to, directly or indirectly (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating immediately cease and cause to an SPAC Acquisition Proposal, (b) participate in or continue be terminated any discussions or negotiations with any third-party Person that may be ongoing with respect to, or furnish that are intended to or make availablecould reasonably be expected to lead to, any a Takeover Proposal, and demand the immediate return or destruction (which destruction shall be certified in writing to the Company or the Acquiror, as applicable) of all confidential information concerning SPAC previously furnished to any third party relating Person (other than the Company, the Acquiror or their respective Affiliates or Representatives) with respect to an SPAC Acquisition any Takeover Proposal, subject to the terms of any existing confidentiality or provide similar agreement with such Person. Prior to the Effective Time, subject to Section 7.6 in the case of the Company and Section 7.7 in the case of the Acquiror, each of the Company and the Acquiror shall not, and shall cause its respective Affiliates, Consolidated Subsidiaries and its and their respective Representatives not to: (i) directly or indirectly solicit, initiate, induce, encourage or take any other action (including by providing information) designed to, or which could reasonably be expected to, facilitate any inquiries or the making or submission or implementation of any proposal or offer (including any proposal or offer to its stockholders) with respect to any third-party access to the businessesTakeover Proposal; (ii) approve, properties, assets publicly endorse or personnel of SPAC, in each case for the purpose of encouraging recommend or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understandingagreement, binding arrangement, acquisition agreement, merger agreement discussions or similar definitive agreement, or understandings with respect to any Takeover Proposal (including any letter of intent, agreement in principle, memorandum of understanding or confidentiality agreement) or enter into any Contract or understanding (including any letter of intent, agreement in principle, memorandum of understanding or confidentiality agreement (other than an Acceptable Confidentiality Agreement (as defined below) entered into when permitted by Section 7.6 in the case of the Company and Section 7.7 in the case of the Acquiror)) requiring it to abandon, terminate or fail to consummate, or that is intended to or that could reasonably be expected to result in the abandonment of, termination of or failure to consummate, the Merger or any other agreement with respect to an SPAC Acquisition ProposalTransaction; (iii) initiate or participate in any way in any negotiations or discussions regarding, or (d) grant any waiver, amendment furnish or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by disclose to any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group CompaniesAcquiror, the Shareholders and Company or their respective Affiliates or Representatives) any information with respect to, or take any other action to facilitate or in furtherance of any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (iv) publicly propose or publicly announce an intention to take any of the foregoing actions; or (v) grant any (x) approval pursuant to any Takeover Statute to any Person (other than the Acquiror, the Company or their respective Affiliates) or with respect to any transaction (other than the Transactions) or (y) unless required by applicable fiduciary duties (in the case of the Acquiror) or the applicable statutory duties under applicable Law (in the case of the Company) (as determined by the Acquiror Board or the Company Board in good faith, as applicable), waive, release or fail to enforce any standstill or similar agreement of any third party with respect to equity securities of the Company or the Acquiror; provided, however, that notwithstanding the foregoing, the Company and the Acquiror (A) may inform Persons of the provisions contained in this Section 7.5, and (B) shall be permitted to grant a SPAC Acquisition waiver of, or terminate, any standstill or similar agreement of any third party with respect to equity securities of the Company or the Acquiror, as applicable, in order to allow such third party to confidentially submit a Takeover Proposal.
(b) Each of the Company and the Acquiror shall as promptly as reasonably practicable (and in any event within twenty-four (24) hours after receipt) (i) notify the other party in writing of any request for information or any Takeover Proposal and the terms and conditions of such request, Takeover Proposal or inquiry (including the identity of the Person (or group of Persons) making such request, Takeover Proposal or inquiry) and (ii) provide to the other party copies of any written materials received by the Company or the Acquiror or their respective Affiliates or Representatives in connection with any of the foregoing, and the identity of the Person (or group of Persons) making any such request, Takeover Proposal or inquiry or with whom any discussions or negotiations are taking place. Each of the Company and the Acquiror agrees that it shall keep the other party informed on a reasonably current basis (and in any event within twenty-four (24) hours after receipt) of the status and the material terms and conditions (including amendments or proposed amendments) of any such request, Takeover Proposal or inquiry and keep the other party informed on a reasonably current basis of any information requested of or provided by the Company or the Acquiror and as to the status of all discussions or negotiations with respect to any such request, Takeover Proposal or inquiry.
Appears in 2 contracts
Sources: Merger Agreement (Logan Ridge Finance Corp.), Merger Agreement (Portman Ridge Finance Corp)
No Solicitation. From (a) The Company and its Subsidiaries shall immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and terminate such Persons’ access to any data room containing the date hereof Company’s confidential information, and shall as promptly as practicable (and in any event within three (3) Business Days) request the return from all such Persons or the destruction by such Persons of all copies of confidential information previously provided to such Persons by the Company, its Subsidiaries or Representatives.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the Merger Closing Date or, if earlier, earlier to occur of (A) the termination of this Agreement in accordance with pursuant to Article XIIVIII and (B) the Effective Time, SPAC the Company and its Subsidiaries shall not, and nor shall direct they authorize or knowingly permit any of the Sponsor and its controlled Affiliates and its and their respective officersdirectors, directors and Representatives not officers or other employees, controlled affiliates, or any investment banker, attorney, accountant or other authorized agent or representative retained by any of them (collectively, “Representatives”) to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or induce the making, submission or announcement of, or pursue any inquiryknowingly encourage, indication of interestfacilitate or assist, proposal or offer relating to an SPAC Acquisition Proposal, (bii) furnish to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in or continue any discussions or negotiations with any thirdPerson with respect to an Acquisition Proposal, or (iv) enter into any Contract contemplating or otherwise relating to an Acquisition Transaction (other than an Acceptable Confidentiality Agreement).
(c) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the receipt of the Requisite Stockholder Approval, if the Company receives from any Person a bona fide, written and unsolicited Acquisition Proposal not involving a breach of Section 5.2(b) that the Company Board determines in good faith (after consultation with the Company’s financial advisor and outside legal counsel) either constitutes or is reasonably expected to lead to a Superior Proposal, the Company Board may, directly or indirectly through the Company’s Representatives, (i) participate or engage in discussions or negotiations with such Person and/or (ii) furnish to such Person any non-party public information relating to the Company or any of its Subsidiaries and/or afford such Person access to the business, properties, assets, books, records or other non-public information, or the personnel, of the Company or any of its Subsidiaries, in each case under this clause (ii) pursuant to an Acceptable Confidentiality Agreement, provided that 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 by the Company to Parent; provided, however, that in the case of each action taken pursuant to the preceding clauses (i) or (ii), prior to taking such action, (A) the Company Board and/or any authorized committee thereof determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under Delaware Law, and (B) the Company gives Parent written notice of the identity of such Person and the material terms of such Acquisition Proposal (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof) and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person (and shall include with such notice copies of any written materials received from or on behalf of such Person in connection with or relating to such Acquisition Proposal). Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by the Company’s Subsidiaries or its Representatives shall be deemed to be a breach of this Section 5.2 by the Company.
(d) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the Effective Time, neither the Company nor any of its Subsidiaries shall terminate, amend, modify or waive any rights under, or release any Person (other than Parent and Acquisition Sub) from, any “standstill” or other similar agreement between the Company or any of its Subsidiaries, on the one hand, and such Person, on the other, unless the Company Board and/or any authorized committee thereof determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under Delaware Law.
(e) In addition to the obligations of the Company set forth in Section 5.2(b), the Company shall promptly (and in any event within 48 hours) notify Parent of any receipt by the Company or any of its Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or furnish or make availablewhich would reasonably be expected to lead to, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to including with such notice the businesses, properties, assets or personnel material terms and conditions of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC such Acquisition Proposal, request or (d) grant any waiverinquiry, amendment and the identity of the Person or release under any confidentiality agreement or otherwise knowingly facilitate group making any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, request or inquiry (and shall direct include with such notice copies of any written materials received from or on behalf of such Person in connection with or relating to such Acquisition Proposal (including any financial terms)). The Company shall keep Parent reasonably informed of the Sponsors status and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with material terms of any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC such Acquisition Proposal, request or inquiry.
Appears in 2 contracts
Sources: Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Cypress Semiconductor Corp /De/)
No Solicitation. From (a) Without limiting any other obligations under this Agreement, each of Applied and TEL agrees that, from the date hereof until the earlier of the Applied Merger Closing Date or, if earlier, Effective Time and the termination of this Agreement in accordance with Article XIIits terms, SPAC shall not, and shall direct neither it nor any of its Subsidiaries nor any of the Sponsor and its controlled Affiliates and its and their respective officers, directors or employees of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly indirectly:
(ai) solicit, initiate, knowingly encourage, knowingly facilitate (subject to Section 4.3(b)) or pursue knowingly induce the making, submission or announcement of any inquiryAcquisition Proposal or Acquisition Inquiry;
(ii) subject to Section 4.3(b), indication of interestfurnish any non-public information or non-public data to any Person (other than TEL or Applied, proposal respectively) in connection with or offer relating in response to an SPAC Acquisition ProposalProposal or Acquisition Inquiry;
(iii) subject to Section 4.3(b), (b) participate engage in or continue any discussions or negotiations with any third-party with respect toPerson (other than TEL or Applied, or furnish or make available, any information concerning SPAC respectively) relating to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or Acquisition Inquiry;
(civ) approve, endorse or recommend any Acquisition Proposal or Acquisition Inquiry or, in the case of Applied, approve, endorse or recommend any Person or any group other than TEL becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement in principle or letter of intent or similar definitive agreementdocument or any Contract (other than a confidentiality agreement on the terms described in Section 4.3(b)) contemplating or otherwise relating to any Acquisition Transaction or agree to do any of the foregoing related to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary set forth in Section 4.3(a):
(i) each of Applied and TEL and their respective boards of directors shall be permitted to: (A) in the case of Applied, comply with Rule 14d-9 and Rule 14e-2 of the Exchange Act; and (B) in the case of TEL, comply with Section 27-10 of the Financial Instruments and Exchange Act (Act No. 25 of 1948); provided, however, that neither clause “(A)” nor clause “(B)” of this Section 4.3(b)(i) will in any way eliminate or modify the effect that any such action would otherwise have under this Agreement; and
(ii) at any time following the date hereof and, in the case of Applied, prior to receipt by Applied of the Required Applied Stockholder Vote and, in the case of TEL, prior to the receipt of the Required TEL Stockholder Vote, neither Section 4.3(a) nor any other provision of this Agreement shall prohibit Applied or TEL, respectively, from furnishing nonpublic information to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Superior Offer that is submitted by a Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any breach of, or any letter action inconsistent with, any of intentthe provisions set forth in this Section 4.3(b); (B) the Applied Board or the TEL Board, memorandum as the case may be, concludes in good faith, after having consulted with its outside legal counsel, that failure to take such action would be a breach of understanding or agreement in principletheir fiduciary duties under applicable Legal Requirements; (C) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Applied Board or the TEL Board, as the case may be, gives TEL or Applied, respectively, written notice of the identity of such Person and the intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Applied Board or the TEL Board, as the case may be, receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to Applied or TEL, as the case may be, as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement; and (D) at least 24 hours prior to furnishing any such nonpublic information to such Person, Applied and TEL, as the case may be, furnishes such nonpublic information to TEL or Applied, respectively (to the extent such nonpublic information has not been previously furnished to TEL or Applied, respectively).
(c) Each of Applied and TEL shall promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal or Acquisition Inquiry) advise TEL or Applied, respectively, 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 and copies of all correspondence and other agreement written material sent or provided to such Party in connection therewith) that is made or submitted by any Person (other than Applied or TEL) during the Pre-Closing Period. Each of Applied or TEL, as applicable, after receiving an Acquisition Proposal or Acquisition Inquiry, shall keep TEL or Applied, respectively, reasonably informed with respect to an SPAC to: (i) the status of any such Acquisition Proposal, Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or material development or proposed material modification or material development thereto.
(d) grant any waiverEach of Applied and TEL agrees that it, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiriesits Subsidiaries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their its Subsidiaries’ respective officers, directors and employees shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately cease and terminate all cause to be terminated any activities, discussions and or negotiations existing as of the date of this Agreement with any Persons Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(other than e) Each of Applied and TEL agrees not to release or permit the Group Companiesrelease of any Person from, or to waive or permit the Shareholders waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to which it or any of its Subsidiaries is a party or under which it or any of its Subsidiaries has any rights, and their Representatives) shall use its reasonable best efforts to cause each such agreement to be enforced in accordance with respect to a SPAC Acquisition Proposalits terms at the request of TEL or Applied, respectively.
Appears in 2 contracts
Sources: Business Combination Agreement, Business Combination Agreement (Applied Materials Inc /De)
No Solicitation. From the date hereof No-Shop Period Start Date until the Merger Closing Date Effective Time, or, if earlier, the termination of this Agreement in accordance with Article XIISection 9.01, SPAC the Company shall not, and nor shall direct it permit any Representative of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not Company to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or knowingly encourage (including by way of providing information) the submission or announcement of any inquiries, proposals or pursue offers that constitute or would reasonably be expected to lead to any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Takeover Proposal, (bii) participate provide any non-public information concerning the Company or any of its Subsidiaries related to, or to any person or group who would reasonably be expected to make, any Takeover Proposal, (iii) engage in or continue any discussions or negotiations with respect thereto, (iv) approve, support, adopt, endorse or recommend any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Takeover Proposal, or (dv) grant any waiverotherwise cooperate with or assist or participate in, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussionsoffers, discussions or negotiations or any effort or attempt by any Person negotiations. Subject to makeSection 6.02(c), an SPAC Acquisition Proposal. From and after at the date hereofNo-Shop Period Start Date, SPAC shall, and the Company shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations cause to be terminated any solicitation, encouragement, discussion or negotiation with any Persons person or groups (other than a Qualified Go-Shop Bidder) conducted theretofore by the Group CompaniesCompany, the Shareholders and its Subsidiaries or any of their Representatives) respective Representatives with respect to any Takeover Proposal and shall use reasonable best efforts to require any other parties (other than a SPAC Acquisition ProposalQualified Go-Shop Bidder) who have made or have indicated an intention to make a Takeover Proposal to promptly return or destroy any confidential information previously furnished by the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Burger King Holdings Inc)
No Solicitation. From (a) Neither the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct Company nor any of the Sponsor and its controlled Affiliates and its and --------------- subsidiaries nor any of their respective officers, directors directors, employees, agents or representatives (including, without limitation, investment bankers, attorneys and Representatives not toaccountants) shall, directly or indirectly indirectly, (ai) solicit, initiateinitiate or - encourage or (ii) enter into any discussions or negotiations with, or pursue in any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or way -- continue any discussions or negotiations with commenced before the date of this Merger Agreement with, or disclose directly or indirectly any third-party with respect information not customarily disclosed concerning its business and properties to, or furnish or make availableafford any access to its properties, books and records to, any corporation, partnership or other person or group in connection with any inquiry or proposal (an "Acquisition Proposal") regarding a sale of any shares of the capital stock of the Company or any of its subsidiaries or a merger, consolidation or sale or spin-off of all or a substantial portion of the assets of the Company or any subsidiary of the Company, or a liquidation or a recapitalization of the Company or any of its subsidiaries, or any similar transaction. The Company will notify the Parent immediately, orally and in writing, if any discussions or negotiations are sought to be initiated, any inquiry or proposal is made, or any such information concerning SPAC is requested, with respect to an Acquisition Proposal or potential Acquisition Proposal or if any Acquisition Proposal is received or if the Company has been informed that an Acquisition Proposal is forthcoming, and will include in such notification the identity of the other party or parties and the material terms and conditions of any such request, inquiry or Acquisition Proposal. Except as expressly provided below, the Board of Directors of the Company shall not take any action to withdraw or modify in a manner adverse to the Parent or the Purchaser, or take a public position inconsistent with, its approvals or recommendation of the Offer, the Merger, this Agreement or the Stockholders Agreement or to recommend another Acquisition Proposal and shall not resolve to do any of the foregoing. The Company will keep the Parent informed in reasonable detail of the status (including amendments or proposed amendments) of any such request, inquiry or Acquisition Proposal. Immediately following the execution of this Agreement, the Company will cease any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal and request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any of its subsidiaries or any portion thereof to return all confidential information heretofore furnished to such person by or on behalf of the Company.
(b) Notwithstanding anything to the contrary contained in this Agreement, the Company and its Board of Directors (i) may participate in - discussions or negotiations with or furnish information to any third party relating that has made an unsolicited Acquisition Proposal in writing after the date hereof (a "Potential Acquiror") if the Board reasonably determines in good faith (A) that - such Acquisition Proposal is reasonably likely to an SPAC Acquisition Proposalresult in a Superior Proposal and (B) after receiving advice of its independent legal counsel, that - participation in such discussions or negotiations or furnishing such information is consistent with its fiduciary duties to the Company's stockholders under applicable law, and (ii) shall be permitted to take and disclose to the -- Company's stockholders a position with respect to any tender or exchange offer by a third party, or provide amend or withdraw such position, pursuant to Rules 14d-9 and 14e-2 of the Exchange Act or make any third-party access other disclosure to the businessesCompany's shareholders as the Board determines in good faith, propertiesafter receiving advice of its independent legal counsel, assets or personnel of SPAC, in each case for is consistent with its fiduciary duties to the purpose of encouraging or facilitating an SPAC Acquisition Proposal or Company's stockholders under applicable law.
(c) enter Any non-public information furnished to a Potential Acquiror shall be pursuant to a confidentiality agreement containing standard terms for confidentiality agreements entered into any binding understandingin such circumstances, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter which terms shall be no more favorable to the Potential Acquiror than the terms of intent, memorandum of understanding or agreement in principle, or any other agreement with respect the Confidentiality Agreement are to an SPAC Acquisition Proposal, or the Parent.
(d) grant Except as provided in the following sentence, the Board of Directors of the Company shall not (i) withdraw or modify or propose to withdraw - or modify, in any waivermanner adverse to Parent, amendment the approval or release under any confidentiality agreement recommendation of such Board of Directors of this Agreement, the Offer or otherwise knowingly facilitate any such inquiries, proposals, discussionsthe Merger or (ii) -- approve or recommend, or negotiations propose to approve or recommend, any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and In the event that, after the date hereofCompany has received a bona fide Superior Proposal not solicited in violation of this Agreement, SPAC shallthe Board determines (after receiving the advice of its independent counsel) prior to the consummation of the Offer (or, if the Offer is consummated and extended, the initial consummation of the Offer) that to do so is consistent with its fiduciary duties, the Board may (x) withdraw or modify its approval or - recommendation of this Agreement, the Offer and the Merger, and shall direct (y) approve or - recommend such a Superior Proposal.
(e) The term "Superior Proposal" means any proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than a majority of the Sponsors Shares then outstanding or all or substantially all the assets of the Company, and otherwise on terms which the Board of Directors of the Company in good faith concludes (after receiving the advice of its controlled Affiliates financial advisors and independent counsel), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, (i) would, if consummated, result in a - transaction that is more favorable to its and stockholders (in their respective officerscapacity as stockholders), directors and Representatives tofrom a financial point of view, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group CompaniesOffer and the Merger and the other transactions contemplated by this Agreement (taking into account, at the Shareholders time of determination, any changes to the terms of this Agreement which as of that time had been proposed in writing, in good faith, by the Parent) and their Representatives(ii) with respect to a SPAC that the person making the Acquisition Proposal is capable of consummating -- such Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Prudential Mortgage Capital Co LLC), Merger Agreement (Prudential Mortgage Capital Co LLC)
No Solicitation. From the date hereof until the Merger Closing Date or(a) Except as set forth in Section 6.7(b), if earlier, the termination none of this Agreement in accordance with Article XII, SPAC shall notCompany nor any of its Subsidiaries shall, and each of them shall direct any of the Sponsor and cause its controlled Affiliates and its and their respective officers, directors directors, employees, agents, investment bankers, financial advisors, attorneys, accountants and Representatives other retained representatives (each a “Representative”) not to, directly or indirectly (ai) solicit, initiate, encourage, knowingly facilitate (including by way of providing information) or pursue induce any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish the making or make availablecompletion of, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide any inquiry, proposal or offer that is reasonably likely to lead to any third-party access Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or “group” (as such term is defined in Section 13(d) under the businessesExchange Act) any confidential or nonpublic information with respect to or in connection with, propertiesan Acquisition Proposal, assets (iii) take any other action to knowingly facilitate any inquiries or personnel the making of SPACany proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, in each case for the purpose of encouraging (iv) approve, endorse or facilitating an SPAC recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (cv) enter into any binding understandingagreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal (other than any confidentiality agreement required by Section 6.7(b)), binding arrangement, acquisition agreement, merger (vi) enter into any agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principleprinciple requiring, directly or indirectly, Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any other of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.7(a), if Company or any of its Representatives receives an unsolicited bona fide written Acquisition Proposal by any Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) that did not result from or arise in connection with a breach of this Section 6.7 at any time prior to the Company Shareholders’ Meeting that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s financial advisors and outside legal counsel) to constitute or to be reasonably likely to result in a Superior Proposal, Company and its Representatives may take any action described in Section 6.7(a)(ii) above to the extent that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s outside legal counsel), that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that, prior to taking any such action, Company has obtained from such Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) an executed confidentiality agreement with respect containing terms substantially similar to, and no less favorable to an SPAC Company than, the terms of the Confidentiality Agreement.
(c) As promptly as practicable (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Company shall advise Purchaser in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, shall promptly provide to Purchaser a copy of the Acquisition Proposal, request or inquiry (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Acquisition Proposal) and shall keep Purchaser promptly apprised of any related developments, discussions and negotiations (including providing Purchaser with a copy of all material documentation and correspondence relating thereto) on a current basis. Company agrees that it shall immediately provide to Purchaser any information concerning Company that may be provided (pursuant to Section 6.7(b)) to any other Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) in connection with any Acquisition Proposal which has not previously been provided to Purchaser.
(d) grant Notwithstanding anything herein to the contrary, at any waivertime prior to the Company Shareholders’ Meeting, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiriesthe Board of Directors of Company may withdraw its recommendation of the Merger Agreement, proposalsthereby resulting in a Change in the Company Recommendation, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From if and only if (x) from and after the date hereof, SPAC Company has complied with Sections 6.3 and 6.7, and (y) the Board of Directors of Company has determined in good faith, after consultation with Company’s outside legal counsel, that the taking of such action is reasonably necessary in order for the Board of Directors of Company to comply with its fiduciary duties under applicable Law; provided, that the Board of Directors of Company may not effect a Change in the Company Recommendation unless:
(i) Company shall have received an unsolicited bona fide written Acquisition Proposal and the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by Purchaser;
(ii) Company shall have provided prior written notice to Purchaser at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Purchaser that the Board of Directors of Company has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Superior Proposal);
(iii) during the Notice Period, Company shall, and shall direct cause its financial advisors and outside counsel to, negotiate with Purchaser in good faith (to the extent Purchaser desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Purchaser, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, Company shall deliver a new written notice to Purchaser and shall again comply with the requirements of this Section 6.7(d) with respect to such new written notice, except that the Sponsors new Notice Period shall be two business days. In the event the Board of Directors of Company does not make the determination referred to in clause (iv) of this paragraph and thereafter seeks to effect a Change in the Company Recommendation, the procedures referred to above shall apply anew and shall also apply to any subsequent Change in the Company Recommendation.
(e) Company and its controlled Affiliates Subsidiaries shall, and its and shall cause their respective officers, directors and Representatives to, (i) immediately cease and terminate cause to be terminated any and all existing activities, discussions and or negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) conducted heretofore with respect to a SPAC any Acquisition Proposal; (ii) request the prompt return or destruction of all confidential information previously furnished in connection therewith; and (iii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or Company or any of its Subsidiaries or Representatives is a party, and enforce the provisions of any such agreement.
(f) Nothing contained in this Agreement shall prevent Company or its Board of Directors from making any disclosure to Company shareholders if the Board of Directors of Company (after consultation with Company’s outside legal counsel) concludes that its failure to do so would cause it to violate its fiduciary duties under applicable Law; provided, that this Section 6.7(f) will in no way eliminate or modify the effect that any action taken pursuant hereto would otherwise have under this Agreement.
(g) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Farmers National Banc Corp /Oh/), Merger Agreement (Cortland Bancorp Inc)
No Solicitation. From Neither the date hereof until Company nor Parent shall, nor permit any of its Subsidiaries to, nor authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly, or indirectly, (i) solicit or encourage (including by way of furnishing any information to any person) any inquiries with respect to, or the Merger Closing Date ormaking, if earliersubmission or announcement of, any Alternative Transaction Proposal (as defined in Section 5.4(f)(ii)), (ii) engage in any negotiations concerning or furnish to any person any information with respect to any possible Alternative Transaction Proposal (except to disclose the existence of the provisions of this Section 5.4), (iii) withdraw or modify, or publicly propose to withdraw or modify, the termination of this Agreement Company Board Recommendation (as defined in accordance with Article XIISection 5.5(c)) in a manner adverse to Parent (except to the extent specifically permitted pursuant to Section 5.4(d)), SPAC shall not(iv) approve, and shall direct endorse or recommend, or publicly propose to approve or recommend, any Alternative Transaction (as defined in Section 5.4(f)(i)) (except to the extent specifically permitted pursuant to Section 5.4(d)) (any of the Sponsor actions referred to in the foregoing clauses (iii) or (iv), whether taken by the Company’s Board of Directors or a committee thereof, an “Adverse Recommendation Change”), or (v) enter into any letter of intent, agreement in principle or similar document or any contract, agreement or commitment (whether binding or not) contemplating or otherwise relating to any Alternative Transaction Proposal, other than a confidentiality agreement that the Company is permitted to enter into under Section 5.4(c). Each of the Company and its controlled Affiliates Parent and its and each of their respective Subsidiaries will immediately cease, and will cause its officers, directors and Representatives not toemployees and instruct any investment banker, directly financial advisor, attorney, accountant or indirectly (a) solicitother representative retained by it to cease, initiateany and all existing activities, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement parties conducted heretofore with respect to an SPAC Acquisition any Alternative Transaction Proposal, and will use its commercially reasonable efforts to enforce (and will not waive, terminate or (dmodify any provisions of) grant any waiver, amendment or release under any confidentiality or standstill agreement (or otherwise knowingly facilitate any similar agreement) relating to any such inquiriesAlternative Transaction Proposal, proposalsincluding by requesting the other party thereto to promptly return or destroy any confidential information previously furnished thereto and using commercially reasonable efforts to obtain injunctions or other equitable remedies to prevent or restrain any breaches of such agreements and to enforce specifically the terms thereof, discussions, or negotiations or any effort or attempt by any Person except to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any extent that the Board of Directors of the Sponsors Company or Parent, as the case may be, concludes in good faith (after consultation with its financial advisors and outside legal advisors) that enforcement of any such confidentiality or standstill agreement (or similar agreement) would be inconsistent with its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalfiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Invitrogen Corp), Merger Agreement (Applera Corp)
No Solicitation. (a) From the date hereof of this Agreement until the Merger Closing Date Effective Time, except as specifically permitted in Section 5.4(d), the Company agrees that neither it nor any of its Subsidiaries nor any of the officers or directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ Representatives not to, directly or indirectly:
(i) initiate, solicit or knowingly encourage (including by way of providing information) or facilitate any inquiries, proposals or offers with respect to, or the making, or the completion of, a Takeover Proposal;
(ii) participate or engage in any discussions or negotiations with, or furnish or disclose any non-public information relating to the Company or any of its Subsidiaries to, or otherwise cooperate with or assist any Person in connection with a Takeover Proposal;
(iii) withdraw, modify or amend the Company Board Recommendation in any manner adverse to MergerCo;
(iv) approve, endorse or recommend any Takeover Proposal;
(v) enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to a Takeover Proposal; or
(vi) resolve, propose or agree to do any of the foregoing.
(b) The Company shall, and shall cause each of its Subsidiaries and Representatives to, immediately cease any solicitations, discussions or negotiations existing on the date of this Agreement with any Person (other than the parties hereto) that has made or indicated an intention to make a Takeover Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.4.
(c) The Company shall notify MergerCo promptly (and in any event no later than the earlier of (1) within 48 hours of receipt or (2) 24 hours prior to taking any action contemplated by this Section 5.4) upon receipt by it or its Subsidiaries (after the Company or its Representatives obtains Knowledge thereof) or Representatives of (i) any Takeover Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries other than requests for information unrelated to a Takeover Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Takeover Proposal. The Company shall notify MergerCo promptly (and in any event no later than the earlier of (1) within 48 hours of receipt or (2) 24 hours prior to taking any action contemplated by this Section 5.4) with the identity of such Person and a copy of such Takeover Proposal, indication, inquiry or request (or, if earlierwhere no such copy is available or the disclosure thereof would cause the Takeover Proposal to be void, a description of the material terms and conditions of such Takeover Proposal, indication, inquiry or request), including any material modifications thereto. The Company shall keep MergerCo reasonably informed on a current basis (and in any event within 24 hours of the occurrence of any material changes, developments, discussions or negotiations) of the status of any such Takeover Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), including, except where the disclosure thereof would cause the Takeover Proposal to be void, furnishing copies of any written revised proposals. Without limiting the foregoing, the Company shall promptly (and in any event within 24 hours) notify MergerCo orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Takeover Proposal pursuant to Section 5.4(d). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is party to any agreement, which prohibits the Company from providing such information to MergerCo.
(d) Notwithstanding the foregoing, the Company shall be permitted, if it has otherwise complied with its obligations under this Section 5.4, but only prior to the satisfaction of the condition set forth in Section 6.1(a), to:
(i) engage in discussions or negotiations with a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to taking such action, (A) the Company enters into an Acceptable Confidentiality Agreement with such Person and (B) the Company Board determines in good faith (1) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or is reasonably likely to result in a Superior Proposal and (2) after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws;
(ii) furnish or disclose any non-public information relating to the Company or any of its Subsidiaries to a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to taking such action, the Company Board determines in good faith (A) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or is reasonably likely to result in a Superior Proposal and (B) after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws, but only so long as the Company (x) has caused such Person to enter into an Acceptable Confidentiality Agreement and (y) concurrently discloses the same such non-public information to MergerCo if such non-public information has not previously been disclosed to MergerCo;
(iii) withdraw, modify or amend the Company Board Recommendation in a manner adverse to MergerCo or ParentCo (a “Recommendation Change”), if the Company Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws; provided that, if such action is in response to or relates to a Takeover Proposal, then the Recommendation Change shall be taken only in compliance with Section 5.4(d)(iv);
(iv) in response to a Takeover Proposal not solicited in violation of this Section 5.4 which the Company Board has determined in good faith, after consultation with its outside financial advisor, constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by MergerCo pursuant to the provisos to this paragraph, (x) effect a Recommendation Change or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, such termination to be effective only if in advance of or concurrently with such termination the Company pays the Termination Fee in the manner provided for in Section 7.6(a); provided that the Company shall not make a Recommendation Change or terminate this Agreement unless: (1) the Company Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws, (2) the Company shall have given MergerCo prompt written notice advising MergerCo of (A) the decision of the Company Board to take such action and (B) the material terms and conditions of the Takeover Proposal, including the identity of the party making such Takeover Proposal and, if available, a copy of the relevant proposed transaction agreements with such party and other material documents, (3) the Company shall have given MergerCo five Business Days (or three Business Days in the event of each subsequent material revision to such Takeover Proposal) after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal) and shall have negotiated in good faith with MergerCo with respect to such proposed revisions or other proposal, if any, and (4) at the end of such period, the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by MergerCo, if any, after consultation with outside legal counsel, that (A) in the case of a Recommendation Change, failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws and (B) in the case of a termination of this Agreement, that such Takeover Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by MergerCo; provided that, in the event the Company Board does not make the determination referred to in clause (4) of this paragraph but thereafter determines to effect a Recommendation Change or to terminate this Agreement pursuant to this Section 5.4(d)(iv), the procedures referred to in clauses (1) – (4) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification.
(e) Section 5.4(d) shall not prohibit the Company Board from disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act; provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall be deemed to be a withdrawal, modification or amendment of the Company Board Recommendation in a manner adverse to MergerCo unless the Company Board (x) expressly reaffirms its recommendation to its shareholders in favor of approval of this Agreement or (y) rejects such other Takeover Proposal.
(f) The Company shall not take any action to (i) amend the Company Rights Agreement or redeem the Rights (as defined in the Company Rights Agreement), or (ii) exempt any Person from the restrictions on “business combinations” contained in Section 490.1110 of the IBCA (or any similar provisions) or otherwise cause such restrictions not to apply, in each case, unless such actions are taken simultaneously with a termination of this Agreement in accordance with Article XII, SPAC shall not, and shall direct any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not to, directly or indirectly (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposalterms.
Appears in 2 contracts
Sources: Merger Agreement (Bandag Inc), Merger Agreement (Bandag Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XII, SPAC (a) The Company and its Subsidiaries shall not, and shall direct any of the Sponsor Company and its controlled Affiliates and its and Subsidiaries shall use their reasonable best efforts to ensure that their respective officers, directors directors, employees, representatives and Representatives agents (including, but not limited to, investment bankers, attorneys and accountants) do not, directly or indirectly (a) indirectly, encourage, solicit, initiateparticipate in or initiate discussions or negotiations with, or pursue provide any inquiryinformation to, indication any corporation, partnership, person or other entity or group (other than Purchaser, any of interest, its affiliates or representatives) concerning any proposal or offer relating to acquire all or a substantial part of the business or properties of the Company or any of its Subsidiaries or any capital stock of the Company or any of its Subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or similar transaction involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an SPAC "Acquisition Proposal"), except that nothing contained in this Section 6.08 or any other provision hereof shall prohibit the Company or the Company's Board from (bi) participate in or continue any discussions or negotiations with any third-party taking and disclosing to the Company's stockholders a position with respect toto a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or furnish (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law; provided that the Company may not, except as permitted by Section 6.08(b), withdraw or make availablemodify its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From Except as permitted by Section 6.08(b), the Company shall, and shall cause each of its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company, any of its Subsidiaries or any officer, director, employee or affiliate of, or investment banker, attorney, accountant or other advisor or representative of, the Company or any of its Subsidiaries with parties conducted heretofore with respect to any of the foregoing.
(b) Notwithstanding the foregoing, prior to the later of (i) 11:59 P.M. Chicago time March 30, 1998 and (ii) the expiration of the applicable waiting periods under the HSR Act, the Company may furnish information concerning the Company and its Subsidiaries to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements with terms substantially similar to those contained in the Confidentiality Agreement, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal if (i) such entity or group, which has not been solicited by or on behalf of the Company after the date hereof, SPAC shallhas submitted a bona fide written proposal to the Company relating to any such transaction which the Board concludes in good faith, after consulting with a nationally recognized investment banking firm, (A) is more favorable to the Company's stockholders (in their capacities as stockholders), from a financial point of view, than the Offer and the Merger and (B) is reasonably capable of being completed, and shall direct any (ii) in the good faith opinion of the Sponsors and its controlled Affiliates and its and their respective officersBoard of Directors of the Company, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than only after receipt of advice from outside legal counsel to the Group CompaniesCompany, the Shareholders failure to provide such information or access or to engage in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable law (an Acquisition Proposal which satisfies clauses (i) and their Representatives(ii) being referred to herein as a "Superior Proposal"). The Company shall provide reasonable notice to Purchaser to the effect that it has received an Acquisition Proposal, including its terms and conditions (but excluding the identity of the party or parties making such Acquisition Proposal, unless the terms and conditions of such Acquisition Proposal contains a purchase price that includes stock of such party or parties). At any time after 48 hours following notification to Purchaser of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 6.08(b), the Board of Directors may withdraw or modify its approval or recommendation of the Offer and may cause the Company to enter into an agreement with respect to a SPAC Acquisition Superior Proposal, provided it shall concurrently with entering into such agreement pay or cause to be paid to Purchaser the Termination Fee (as defined below) plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.03(b). If the Company shall have notified Purchaser of its intent to enter into an agreement with respect to a Superior Proposal in compliance with the preceding sentence and has otherwise complied with such sentence, the Company may enter into an agreement with respect to such Superior Proposal (with the bidder and on terms no less favorable than those specified in such notification to Purchaser) after the expiration of such 48 hour period.
Appears in 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
No Solicitation. From (a) Until the date hereof until earlier of the Merger Closing Date or, if earlier, Effective Time or the termination of this Agreement in accordance with Article XIIAgreement, SPAC shall notthe Company and the officers, and shall direct any directors, employees or other agents of the Sponsor and its controlled Affiliates and its and their respective officers, directors and Representatives not toCompany will not, directly or indirectly (ai) solicit, initiate, solicit or pursue encourage (including, without limitation, by way of furnishing information), or take any inquiryaction to facilitate any inquiry or the making of, indication any offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Transaction, (ii) propose, enter into or participate in negotiations or discussions with, or provide any information or data to, any person (other than Parent, Merger Sub or any of interest, proposal their respective affiliates or offer representatives) relating to an SPAC any Acquisition ProposalTransaction, (biii) participate make or authorize any statement, recommendation or solicitation in support of, or continue approve, any Acquisition Transaction or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction or transaction contemplated thereby. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any third-party parties conducted heretofore with respect to, or furnish or make available, any information concerning SPAC to any third party of the foregoing. The Company will promptly notify Parent after receipt after the date of this Agreement of any proposal for an Acquisition Transaction or any notice that any person is considering an Acquisition Transaction or any request for information relating to an SPAC Acquisition Proposal, the Company or provide to any third-party for access to the businesses, properties, assets books or personnel records of SPACthe Company by any person that has advised the Company that it may be considering, or has proposed, an Acquisition Transaction and will keep Parent timely informed of the status and details of any such Acquisition Transaction notice, request or any correspondence or communications related thereto and shall provide Parent with a true and complete copy of such Acquisition Transaction notice or request or correspondence or communications related thereto, if it is in writing, or a written summary thereof (which shall include the identity of the person considering or proposing such Acquisition Transaction and the material terms thereof), if it is not in writing. Neither the Company Board nor any committee thereof shall (x) withdraw or modify, or propose to withdraw or modify, in each case for a manner adverse to Parent or Merger Sub, the purpose approval or recommendation by the Company Board or any such committee of encouraging this Agreement or facilitating an SPAC Acquisition Proposal the Merger, or (cy) approve or recommend, or propose to approve or recommend, any Acquisition Transaction or (z) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC any Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalTransaction.
Appears in 2 contracts
Sources: Merger Agreement (Us Dry Cleaning Corp), Merger Agreement (Us Dry Cleaning Corp)
No Solicitation. From (i) The Company agrees that it will, and will cause its Representatives to, immediately cease and cause to be terminated all existing discussions, negotiations and communications with any Persons with respect to any offer or proposal for a merger, consolidation or other business combination involving the date hereof until Company, any acquisition of a substantial amount of the Merger Closing Date orcapital stock (or securities convertible into, if earlieror exchangeable or exercisable for, capital stock) or assets of the Company, any recapitalization with respect to the Company or any other transaction similar to any of the foregoing with respect to the Company other than pursuant to the transactions contemplated by this Agreement (a "Company Acquisition Proposal"). In addition, the termination of this Agreement Company agrees that it will not authorize its employees to continue any existing discussions, negotiations or communications with any Persons with respect to any Company Acquisition Proposal.
(ii) Except as provided in accordance with Article XIISection 6.2(c), SPAC shall the Company will not, and shall direct any of the Sponsor and will not authorize or permit its controlled Affiliates and Representatives or authorize its and their respective officers, directors and Representatives not employees to, directly or indirectly (aA) initiate, solicit, initiate, knowingly encourage or pursue knowingly facilitate any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party inquiries with respect to, or furnish the making of any offer or make availableproposal which constitutes, or is reasonably likely to lead to, any information concerning SPAC to any third party relating to an SPAC Company Acquisition Proposal, (B) enter into or participate in negotiations or discussions with, or provide any information or data to, any Person (other than Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 or any of their respective affiliates or Representatives) relating to any third-party access Company Acquisition Proposal, except as to the businessesexistence of these provisions, properties(C) make or authorize any statement, assets recommendation or personnel of SPACsolicitation in support of, in each case for the purpose of encouraging or facilitating an SPAC approve, any Company Acquisition Proposal or Proposal, (cD) enter into any binding understandingletter of intent or similar document or any contract, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementcommitment contemplating or otherwise relating to any Company Acquisition Proposal or transaction contemplated thereby, or (E) grant any letter of intent, memorandum of understanding waiver or agreement in principle, release under any standstill or any other similar agreement with respect to an SPAC Acquisition Proposal, any equity securities of the Company or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors Company Subsidiaries.
(iii) Any violation of the foregoing restrictions by any of the Company's Representatives will be deemed to be a breach of this Agreement by the Company, whether or not such Representative is so authorized and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than whether or not such Representative is purporting to act on behalf of the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalCompany.
Appears in 2 contracts
Sources: Merger Agreement (Business Objects Sa), Merger Agreement (Crystal Decisions Inc)
No Solicitation. (a) From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement through the Closing, Parent, Operating Company, Canadian Seller and the Companies and their respective Representatives shall not, directly or indirectly, enter into, solicit or initiate any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in accordance any negotiations with, or provide any information to, or otherwise cooperate in any other way with, any Person, other than Purchaser and its Representatives, concerning any sale of all or any material portion of the Business, or of the Shares or any equity securities of the Companies, or any merger, consolidation, liquidation, dissolution or similar transaction involving the Companies or any material portion of the Assets (a "PROPOSED ACQUISITION"). Parent and Seller agree that they will immediately cease and cause to be terminated any existing activities, discussions or negotiations with Article XIIany parties (other than Purchaser) heretofore conducted, SPAC or the provision by Parent or its Affiliates, including the Companies or any of their respective Representatives of information to any party (other than Purchaser) to which information heretofore has been provided with respect to a Proposed Acquisition. If, after the date hereof, Parent or its Affiliates, including the Companies or any of their respective Representatives receives any such inquiry or proposal or request for information, or offer to discuss or negotiate with respect to any Proposed Acquisition, Parent and Seller will, and Parent shall cause its Affiliates, including the Companies and Canadian Seller, to (i) not respond to any such inquiry or proposal or request and (ii) immediately provide notice thereof to Purchaser, including all material terms of the Proposed Acquisition and the identity of the proposing party or parties.
(b) From the date of this Agreement through the Closing, Parent shall not, and shall direct any of the Sponsor and cause its controlled Affiliates and its Parent's and their such Affiliates' respective officers, directors and Representatives employees not to, (i) directly or indirectly solicit or seek to induce any Employee to leave his or her employment or positions with the Companies or (aii) hire or transfer or permit any hire or transfer of any Employee or any person who was an Employee within the ninety (90) days prior to the date of such hire or transfer to positions or employment with Parent or any of its Affiliates, PROVIDED, Parent and its Affiliates may solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating employment to an SPAC Acquisition Proposal, (band employ the persons set forth on EXHIBIT 4.15(b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.
Appears in 1 contract
No Solicitation. From (a) Subject to the date hereof provisions of this Section 5.3(a)-(d) or as otherwise permitted or contemplated by this Agreement, (i) the Company shall (and shall cause each of its Subsidiaries and Representatives to) immediately cease any existing solicitations, discussions or negotiations with any Person (other than the parties hereto) regarding any Alternative Proposal or intention to make an Alternative Proposal and (ii) the Company agrees that it shall not, nor shall it authorize or permit any of its Subsidiaries or any of its or their Representatives to, directly or indirectly, (A) initiate, solicit or encourage any inquiries, proposals or offers with respect to the making of an Alternative Proposal, (B) engage or participate in any negotiations concerning, or provide or cause to be provided any non-public information or data relating to the Company or any of its Subsidiaries in connection with, or have any discussions with any person relating to, an actual or proposed Alternative Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make, implement or complete an Alternative Proposal, (C) adopt, endorse or recommend, or propose publicly to adopt, endorse or recommend, any Alternative Proposal, (D) adopt, endorse or recommend or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Alternative Proposal (other than a confidentiality agreement as provided in Section 5.3(b)), or (E) except to facilitate the making of a Superior Proposal which facilitation is otherwise in compliance with this Section 5.3, amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, unless the Board determines in good faith, after consultation with its outside legal counsel, that compliance with the terms of this Section 5.3 would be inconsistent with its fiduciary duties under applicable law. Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by any Subsidiary of the Company or Representatives of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.3 by the Company.
(b) Notwithstanding anything to the contrary in this Agreement,
(i) the Company may comply with Rule 14e-2(a), Item 1012(a) of Regulation M-A and Rule 14d-9 promulgated under the Exchange Act; provided, however, that none of the Company, the Board or its transaction committee shall, except as expressly permitted by this Section 5.3, recommend any Alternative Proposal or withdraw, amend or modify in a manner adverse to Parent the Recommendation in any disclosure document or communication filed or publicly issued or made in conjunction with the compliance with such requirements;
(ii) as to Persons making an unsolicited written Alternative Proposal, until but not following receipt of Company Stockholder Approval:
(A) during the Window-Shop Period, and thereafter with respect to any Excluded Person, the Company or its Board or its transaction committee may engage in activities that would otherwise be prohibited by Section 5.3(a)(ii)(B); and
(B) except as permitted pursuant to Section 5.3(b)(ii)(A), after the Window-Shop Period, the Company or its Board or its transaction committee may engage in activities prohibited by Section 5.3(a)(ii)(B) only with respect to unsolicited Alternative Proposals as to which the Board or its transaction committee makes a prior determination, in good faith and after consultation with its outside legal counsel and financial advisors, that such Alternative Proposal could reasonably be expected to lead to a Superior Proposal and that failing to engage in such activities with respect to such Alternative Proposal would be inconsistent with the Board’s exercise of its fiduciary duties under applicable Law. The Company will not furnish non-public information to any Persons pursuant to Section 5.3(b)(ii)(A) or (B) before the Company shall have obtained from any such Person a confidentiality agreement on terms and conditions that are no less favorable to the Company than those contained in the Confidentiality Agreement. In addition, Parent shall be entitled to receive an executed copy of such confidentiality agreement prior to or substantially simultaneously with the Company furnishing information to any such Person or its Representatives. Moreover, the Company shall simultaneously provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any such Person or its Representatives which was not previously provided or made available (in a data room) to Parent.
(iii) in response to an Alternative Proposal, the Company or the Board or its transaction committee may (A) recommend such Alternative Proposal to its stockholders or withdraw, amend or modify the Recommendation and (B) if the Board (or its transaction committee) so chooses, cause the Company to terminate this Agreement pursuant to Section 7.1(a)(iii)(B) but only if prior to taking any such action described in clause (A) or (B) of this subsection, (x) the Board (or its transaction committee) determines in good faith after consultation with its financial advisors and outside legal counsel that such Alternative Proposal is a Superior Proposal (taking into account any adjustment to the terms and conditions of the Merger Closing Date orproposed by Parent in response to such Alternative Proposal), if earlierand (y) the Company shall have given notice to Parent, within 24 hours of receipt thereof, that the termination Company has received such Superior Proposal, attaching a copy of such Superior Proposal, and specifying the identity of the Person making such Superior Proposal and informing Parent that the Company intends to terminate this Agreement in accordance with Article XIIthe terms hereof and negotiate in good faith with Parent (the “Negotiation Period”) during the three (3) Business Day period following delivery of such notice to make such revisions to the terms and conditions of this Agreement as would permit the Board not to withdraw, SPAC amend or modify the Recommendation; provided, that in the event the Person making a Superior Proposal revises such Superior Proposal in response to revisions proposed by the Parent, the Company shall notnotify and provide a copy to Parent of such revised Superior Proposal within 24 hours of receipt thereof and the Parent and Company shall enter into a Negotiation Period during the two (2) Business Day period following delivery of such revised Superior Proposal to Parent. If Parent proposes no such revisions during such period as would permit the Board not to withdraw, amend or modify the Recommendation, then the Company and the Board may take the actions described in (A) and (B) if after consultation with the Company’s financial advisors and outside legal counsel, the Board shall direct have determined in good faith that the third party’s Alternative Proposal remains a Superior Proposal (even in light of any of Parent’s revised proposals) and that, after consultation with its outside legal counsel, the Sponsor and failure of the Board to withdraw or modify the Recommendation would be inconsistent with its controlled Affiliates and fiduciary duties under applicable law; and
(iv) the Board or its and their respective officerstransaction committee shall be permitted, directors and Representatives not to, directly or indirectly (a) solicit, initiate, or pursue any inquiry, indication of interest, proposal or offer relating to other than in connection with an SPAC Acquisition Alternative Proposal, (bA) participate to withdraw, amend or modify the Recommendation, and (B) if the Board (or its transaction committee) so chooses, cause the Company to terminate this Agreement pursuant to Section 7.1(a)(iii)(B) but only if prior to taking any such action described in clause (A) or continue (B) of this subsection, the Board (or its transaction committee) determines in good faith, after consultation with outside legal counsel, that, failure to take such action would be inconsistent with its fiduciary duties under applicable law and the Company has given three (3) Business Days advance notice to Parent that the Company intends to take such action.
(c) Notwithstanding anything in this Agreement to the contrary, any factually accurate public statement by the Company that describes the Company’s receipt of a Alternative Proposal and the operation of this Agreement with respect thereto, shall not be deemed to be a recommendation of such Alternative Proposal or the withdrawal, amendment or modification of the Recommendation; provided, however, that the Company shall, to the extent practicable, provide Parent with a reasonable opportunity to comment on and review any such statement.
(d) The Company shall promptly (and in any event within 24 hours) advise Parent of the receipt by the Company of any Alternative Proposal or any request for non-public information or data relating to the Company or any of its Subsidiaries made by any Person that has made or informs the Company that it is considering making an Alternative Proposal or any request for discussions or negotiations with any third-party with respect to, the Company or furnish or make available, any information concerning SPAC to any third party a Representative of the Company relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition a Alternative Proposal or which is reasonably likely to lead to an Alternative Proposal.
(ce) enter into Any action permitted pursuant to this Section 5.3 shall not constitute a breach of the Company’s representations, warranties, covenants or agreements contained in this Agreement.
(f) Nothing contained in this Agreement shall prohibit the Company or the Board from making any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreementdisclosure to its stockholders if the failure to so disclose would be inconsistent with the Board’s fiduciary duties, or any letter of intentdisclosure requirements, memorandum of understanding or agreement in principleunder applicable Law, or any other agreement with respect from disclosing to an SPAC Acquisition Proposalits stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided however, or (d) grant any waiverthat the Recommendation shall be deemed to have been withdrawn for all purposes of Section 7.1(a)(iv)(B), amendment or release under any confidentiality agreement or otherwise knowingly facilitate and Section 7.2 hereunder if the Board makes any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons disclosure (other than a “stop, look and listen” letter or similar communication of the Group Companiestype contemplated by Rule 14d-9(f) under the Exchange Act) unless the Board expressly publicly reaffirms, without qualification, the Shareholders and their RepresentativesRecommendation at least three (3) with respect Business Days prior to a SPAC Acquisition Proposalthe Company Meeting.
(g) As used in this Agreement,
Appears in 1 contract
Sources: Merger Agreement (Wca Waste Corp)
No Solicitation. From the date hereof until the Merger Closing Date or(a) Except as specifically permitted in this Section 6.9, if earlier, the termination of this Agreement in accordance with Article XII, SPAC Company shall not, and shall direct any cause each of the Sponsor and its controlled Affiliates Subsidiaries and its and their respective officers, directors directors, employees, agents, investment bankers, financial advisors, attorneys, accountants and Representatives other retained representatives (each, a “Representative ”) not to, directly or indirectly (ai) solicit, initiate, assist or pursue knowingly take any inquiryother action to facilitate or encourage (including by way of furnishing non-public information), indication the submission of interest, any Acquisition Proposal or the making of any proposal or offer relating that could reasonably be expected to an SPAC lead to any Acquisition Proposal, (bii) enter into, continue or otherwise participate in or continue any discussions or negotiations with regarding any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (diii) grant approve, recommend, declare advisable or enter into any waiveracquisition agreement, amendment merger agreement, option agreement, joint venture agreement, partnership agreement, letter of intent, term sheet or release under other similar agreement regarding any confidentiality agreement Acquisition Proposal or otherwise knowingly facilitate requiring Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Mergers (a “Company Acquisition Agreement”).
(b) Subject to Section 6.9(f), the board of directors of Company shall not fail to make at any such inquiriestime required by this Agreement, proposalswithdraw, discussionsamend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or negotiations adopt, approve or any effort or attempt by any Person to make, publicly recommend an SPAC Acquisition Proposal. From and after , or make any public statement inconsistent with the date hereofCompany Board Recommendation, SPAC shall, and shall direct or resolve or agree to take any of the Sponsors and its controlled Affiliates and its and their respective officersforegoing actions (any of the foregoing, directors and Representatives toa “Company Adverse Recommendation Change”).
(c) As used in this Agreement, immediately cease and terminate all discussions and negotiations with “Acquisition Proposal” means a proposal or offer from, or indication of interest in making a proposal or offer by, any Persons Person (or group of Persons) other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.Parent
Appears in 1 contract
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, (a) Until the termination of this Agreement in accordance with Article XIIAgreement, SPAC the Company shall not, and shall direct not permit any of the Sponsor and its controlled Affiliates and subsidiaries, or any of its and their respective or its subsidiaries' officers, directors and Representatives not directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, financial advisor, attorney, accountant or other representative of the Company or any of its subsidiaries), to, directly or indirectly (a) solicitindirectly, initiate, solicit or pursue knowingly encourage (including by way of furnishing non-public information or assistance), or take any inquiryother action to facilitate, indication any inquiries or the making of interestany proposal that constitutes, proposal or offer relating may reasonably be expected to lead to, an Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal, or authorize or permit any of its officers, directors or employees or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of it or any of its subsidiaries to take any such action; provided, however, that this Section 5.3(a) shall not prohibit the Company from furnishing non-public information regarding the Company to, or entering into discussions and negotiations with, any person in response to an SPAC unsolicited written Acquisition Proposal submitted by such person if (i) the Company Board concludes in good faith, after having received the advice of its financial advisor, that such Acquisition Proposal, if consummated, could result in a transaction that is more favorable from a financial point of view to the Company's stockholders than the Merger, including as part of the Company Board's determination, that, as to any cash consideration to be paid pursuant to such Acquisition Proposal, the person making the Acquisition Proposal has all requisite funds on hand or has provided customary financing commitments for the requisite funds to consummate the Acquisition Proposal, (bii) participate in or continue not later than 24 hours after receipt of any discussions or negotiations with any third-party with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC unsolicited Acquisition Proposal, or provide the Company gives AGT notice (which notice shall be provided orally and in writing and shall identify the person making such Acquisition Proposal and set forth the material terms thereof) of the receipt of such Acquisition Proposal unless the Company Board determines in good faith, after having received the advice of its legal counsel, that giving such notice is inconsistent with the Company Board's fiduciary duties to the Company's stockholders under applicable law, (iii) prior to furnishing any such non-public information to such Person, the Company enters into a confidentiality agreement with terms not materially less favorable to the Company than the Confidentiality Agreement (as defined in Section 5.6(d)) and (iv) prior to furnishing such non-public information to such Person, the Company furnishes such non-public information to AGT to the extent such non-public information has not previously been furnished by the Company to AGT. Notwithstanding anything to the contrary in this Agreement, the Company may give a copy of this Section 5.3 to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating person who inquires about submitting an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC unsolicited Acquisition Proposal. From and after the date hereofFor purposes of this Agreement, SPAC shall, and shall direct "Acquisition Proposal" means any proposal regarding any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons following (other than the Group Companiestransactions 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 20 percent or more of the Shareholders assets of the Company and their Representativesits subsidiaries, taken as a whole, in a single transaction or series of related transactions; (y) with respect any tender offer or exchange offer that if consummated would result in any person beneficially owning more than 20 percent of the outstanding shares of Company Common Stock or the filing of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, plan or intention to a SPAC Acquisition Proposaldo any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Applied Graphics Technologies Inc)
No Solicitation. From the date hereof until the Merger Closing Date or, if earlier, the termination (a) The Company agrees that neither it nor any of this Agreement in accordance with Article XII, SPAC shall not, and shall direct its Subsidiaries nor any of the Sponsor officers and directors of the Company or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its controlled Affiliates Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by the Company or any of its and their respective officers, directors and Representatives Subsidiaries) not to, directly or indirectly indirectly, (ai) initiate, solicit, initiate, encourage or pursue knowingly facilitate any inquiry, indication inquiries or the making of interest, any proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish a transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or make availablesimilar transaction involving it or any of its Significant Subsidiaries (or any group of Subsidiaries which taken together could constitute a Significant Subsidiary), or any purchase or sale of 15% or more of the consolidated assets (including stock of its Subsidiaries) of the Company and its Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, its equity securities that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning securities representing 15% or more of its total voting power (or of the surviving parent entity in such transaction) or the voting power of any of its Significant Subsidiaries (any such proposal, offer or transaction (other than a proposal or offer made by Parent or an Affiliate thereof) a "TAKEOVER PROPOSAL"), (ii) have any discussion with or provide any ----------------- confidential information concerning SPAC or data to any third party Person relating to an SPAC Acquisition a Takeover Proposal, or provide engage in any negotiations concerning a Takeover Proposal, or knowingly facilitate any effort or attempt to make or implement a Takeover Proposal, (iii) approve or recommend, or propose publicly to approve or recommend, any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Takeover Proposal or (civ) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement approve or similar definitive agreementrecommend, or propose to approve or recommend, or execute or enter into, any letter of intent, memorandum of understanding or agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose publicly or agree to do any of the foregoing related to any Takeover Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, the Company (and its Board of Directors) shall be permitted to (i) comply with applicable law (including Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act) with regard to a Takeover Proposal or make any other agreement disclosure to the Company's stockholders if, in the good faith judgment of the Company, after taking into account the advice of outside counsel, failure to so disclose would be inconsistent with respect to an SPAC Acquisition Proposal, or applicable law (d) grant and any waiversuch disclosure shall not be deemed a change, amendment or release under any confidentiality agreement modification in the Company's (or otherwise knowingly facilitate any such inquiriesits Board of Directors') recommendation to the stockholders of the Company), proposals, discussions(ii) change its recommendation to its stockholders or (iii) engage in discussions or negotiations with, or negotiations or provide any effort or attempt by information to any Person to makein response to, an SPAC Acquisition Proposal. From unsolicited bona fide written Takeover Proposal by such Person that did not result from a breach of Section 4.1(a) if and after only to the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition Proposal.extent
Appears in 1 contract
Sources: Merger Agreement (Hotjobs Com LTD)
No Solicitation. (a) From the date hereof until the Merger Closing Date or, if earliertermination hereof, the termination Company will not, nor will it permit any Company Subsidiary, nor will it authorize or permit any officer, director or employee of the Company or any Company Subsidiary and each investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to knowingly facilitate, an Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal.
(b) Immediately after the execution and delivery of this Agreement in accordance with Article XIIAgreement, SPAC shall notthe Company will, and shall direct any of the Sponsor will cause its subsidiaries and its controlled Affiliates and its affiliates, and their respective officers, directors directors, employees, investment bankers, attorneys, accountants and Representatives not other agents to, directly or indirectly (a) solicitcease and terminate any existing activities, initiate, or pursue any inquiry, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party parties conducted heretofore with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC possible Acquisition Proposal, . The Company agrees that it will take the necessary steps to promptly inform the individuals or provide entities referred to any third-party access to in the businesses, properties, assets or personnel first sentence of SPAC, Section 5.5(a) of the obligations undertaken in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or this Section 5.5.
(c) enter into any binding understandingFor purposes of this Agreement, binding arrangement"ACQUISITION PROPOSAL" means an inquiry, acquisition agreement, merger agreement offer or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct proposal regarding any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons following (other than the Group Companiestransactions 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 Shareholders assets of the Company and their Representativesthe Company Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) with respect 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 a SPAC Acquisition Proposaldo any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 1 contract
No Solicitation. (a) From the date hereof until the Merger Closing Date or, if earlier, the termination of this Agreement in accordance with Article XIIuntil the Effective Time, SPAC the Company shall not, and shall direct not permit any of the Sponsor its Subsidiaries to, and shall use commercially reasonable best efforts to cause its and its controlled Affiliates and its and their respective Subsidiaries' officers, directors directors, employees, consultants, representatives and Representatives other agents, including, but not limited to, investment bankers, attorneys and accountants (collectively, the "Representatives"), not to, directly or indirectly indirectly, (ai) solicit, initiate, or pursue knowingly encourage (including by way of furnishing information or assistance), or knowingly induce, or take any action to facilitate the making of, any inquiry, indication of interestoffer or proposal that constitutes, proposal or offer relating may reasonably be expected to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect lead to, or furnish or make available, the making of any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (dii) grant other than informing Persons of the existence of this Section 7.2, participate in any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, discussions or negotiations regarding any Acquisition Proposal or, in connection with any Acquisition Proposal, furnish or any effort or attempt by provide access to any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group Companies, the Shareholders Parent and Purchaser and their Representatives) to properties, books and records or any nonpublic information or data with respect to a SPAC the Company or any of its Subsidiaries, or (iii) approve or recommend, or propose to approve or recommend any Acquisition Proposal, or (iv) enter into any understanding, letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or document contemplating or otherwise relating to any Acquisition Proposal (except for any confidentiality agreement required by Section 7.2(b)), or approve or resolve to approve, or recommend or resolve to recommend, any Acquisition Proposal, or (v) take any action to make any "fair price," "moratorium," "control share acquisition," "business combination" or other similar anti-takeover statute or regulation (including, without limitation, Section 203 of the DGCL) or any restrictive provision of any applicable anti-takeover provision in the Company's certificate of incorporation (including, without limitation, Article Eleventh and Article Fourteenth thereof) or bylaws inapplicable to any transactions contemplated by an Acquisition Proposal. Any violation of any of the foregoing restrictions set forth in this Section 7.2(a) by any of the Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company or any Subsidiary or otherwise, shall be deemed to be a breach of this Section 7.2(a) by the Company.
Appears in 1 contract
No Solicitation. From (a) During the period from the date hereof of this Agreement until the Merger Closing Date Effective Time or, if earlier, the termination of this Agreement in accordance with Article XIIits terms, SPAC shall the Company will not, and shall direct will cause its Subsidiaries not to, and will use commercially reasonable efforts to cause each controlled Affiliate and any Representative of the Company, any of the Sponsor its Subsidiaries or any such controlled Affiliate not to, and its controlled Affiliates and its and their respective officers, directors and Representatives not on becoming aware of it will use commercially reasonable efforts to stop any such person from continuing to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or knowingly encourage, knowingly cooperate with any person regarding, or pursue knowingly facilitate (including by way of furnishing material, non-public information) any inquiryinquiries or proposals regarding, indication or that would reasonably be expected to lead to, any Company Competing Transaction (any of interest, proposal the foregoing inquiries or offer relating proposals being referred to an SPAC herein as a "Company Acquisition Proposal"), (bii) participate in or continue any discussions or negotiations with regarding any third-party with respect toCompany Acquisition Proposal (but the foregoing will not prohibit the Company or any of its Representative from making a person aware or otherwise informing such person of the provisions of this Section 5.4), or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (ciii) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement, other than any Acceptable Confidentiality Agreement, regarding, or that is intended to result in, or would reasonably be expected to lead to, any Company Acquisition Proposal (a "Company Acquisition Agreement").
(b) As used in this Agreement, "Company Competing Transaction" means any of (i) a transaction, including any tender offer, exchange offer or share exchange, pursuant to which any third person or group (other than Parent or any other agreement with respect to an SPAC Acquisition Proposalof its Affiliates or any group of which Parent or its Affiliates is a member), or the stockholders of such third person, directly or indirectly, acquires or would acquire beneficial ownership (das defined in Rule 13d-3 under the Exchange Act) grant of 15% or more of the outstanding shares of common stock of the Company or of the outstanding voting power of the Company (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such common stock or other securities representing such voting power), whether from the Company or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, consolidation or business combination pursuant to which any waiverthird person or group of persons (other than Parent or any of its Affiliates or any group of which Parent or its Affiliates is a member), amendment or release under the stockholders of such third person or persons, beneficially owns or would beneficially own 15% or more of the outstanding shares of common stock or the outstanding voting power of the Company, or, if applicable, any confidentiality agreement surviving entity or otherwise knowingly facilitate the parent entity resulting from any such inquiriestransaction, proposalsimmediately upon consummation thereof, discussions(iii) a recapitalization of the Company or any of its Subsidiaries or any transaction similar to a transaction referred to in clause (ii) above involving the Company or any of its Subsidiaries pursuant to which any third person or group of persons (other than Parent or any of its Affiliates or any group of which Parent or its Affiliates is a member), or negotiations its stockholders, beneficially owns or would beneficially own 15% or more of the outstanding shares of common stock or the outstanding voting power of the Company or such Subsidiary or, if applicable, the parent entity resulting from any such transaction immediately upon consummation thereof or (iv) any transaction pursuant to which any third person or group of persons (other than Parent or any effort of its Affiliates) directly or attempt indirectly (including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture or otherwise) acquires or would acquire control of assets (including for this purpose the equity securities of, or other ownership interest in, Subsidiaries of the Company and securities of the entity surviving any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct merger or business combination involving any of the Sponsors Subsidiaries of the Company) of the Company or any of its Subsidiaries representing 15% or more of the fair market value of all the assets of the Company and its controlled Affiliates and its and their respective officersSubsidiaries, directors and Representatives totaken as a whole, immediately cease and terminate all discussions and negotiations with any Persons (other than prior to such transaction. Wherever the Group Companiesterm "group" is used in this Agreement, it is used as defined in Rule 13d-3 under the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalExchange Act.
Appears in 1 contract
No Solicitation. From Without limiting the Company's other obligations under this Agreement, the Company agrees that, from the date hereof until the Merger Closing Date orClosing, if earlier, the termination neither it nor any of this Agreement in accordance with Article XII, SPAC shall not, and shall direct its Subsidiaries nor any of the Sponsor officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its controlled Affiliates Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its and their respective officers, directors and Representatives Subsidiaries) not to, directly or indirectly indirectly, (ai) initiate, solicit, initiate, encourage or pursue knowingly facilitate (including by way of furnishing information) any inquiry, indication inquiries or the making of interest, any proposal or offer relating to an SPAC Acquisition Proposal, (b) participate in or continue any discussions or negotiations with any third-party with respect to, or furnish a transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or make availablesimilar transaction involving it or any of its Subsidiaries, or any purchase or sale of a substantial portion of the consolidated assets (including without limitation stock of its Subsidiaries) of it and its Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, the equity securities of the Company that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning securities representing a substantial portion of the total voting power of the Company (or of the surviving parent entity in such transaction) or any of its Subsidiaries (any such proposal, offer or transaction, including any single or multi-step transaction or series of related transactions (other than a proposal or offer made by the Purchaser or any of its Affiliates) being hereinafter referred to as an "Acquisition Proposal"), (ii) have any discussion with or provide any confidential information concerning SPAC or data to any third party Person relating to an SPAC Acquisition Proposal, or provide engage in any negotiations concerning an Acquisition Proposal, or 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 third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (civ) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement approve or similar definitive agreementrecommend, or propose to approve or recommend, or execute or enter into, any letter of intent, memorandum of understanding or agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose publicly or agree to do any other agreement with respect of the foregoing related to an SPAC any Acquisition Proposal; provided, however, that the foregoing shall not prohibit the Company, (A) from complying with Rule 14e-2 and Rule 14d-9 under the Exchange Act with regard to a bona fide tender offer or exchange offer, or (dB) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or from participating in negotiations or any effort discussions with or attempt by furnishing information to any Person in connection with an unsolicited bona fide Acquisition Proposal which is submitted in writing by such Person to make, an SPAC Acquisition Proposal. From and the Board of Directors of the Company after the date hereof; provided further, SPAC shallhowever, that prior to participating in any such discussions or negotiations or furnishing any information, (i) the Company receives from such Person an executed confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement, a copy of which shall be provided only for informational purposes to the Purchaser, and shall direct any (ii) the Board of Directors of the Sponsors Company shall have concluded in good faith, after consulting with its outside financial advisors and counsel, that such Acquisition Proposal is reasonably likely to be or to result in a Superior Proposal (as defined in Section 6.1(b) hereto) (an Acquisition Proposal which meets all of the conditions set forth in this clause (B), including the Board of Directors of the Company having reached the conclusion set forth in clause (B)(ii), being herein referred to as a "Qualified Acquisition Proposal"), or (C) after the Board of Directors of the Company has received a Qualified Acquisition Proposal, from engaging in negotiations and discussions with the Company's stockholders with respect to such Qualified Acquisition Proposal. If the Board of Directors of the Company receives an Acquisition Proposal, the Company shall promptly inform the Purchaser in writing of the terms and conditions of such proposal and the identity of the Person making it, and will keep the Purchaser informed, on a current basis, of the status and terms of any such proposals or offers by any Person (whether written or oral). The Company will, and will cause its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all cause to be terminated any activities, discussions and or negotiations existing as of the date hereof with any Persons (other than the Group Companies, the Shareholders Purchaser and their Representativesits Affiliates) conducted heretofore with respect to any Acquisition Proposal, and request the return or destruction of all non-public information furnished in connection therewith. The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which such party or its Subsidiaries is a SPAC party; provided, however, that the Company may waive any provisions of a standstill agreement so long as (A) the Company promptly informs the Purchaser in writing of such waiver and the identity of the Person requesting such waiver (and the Company hereby agrees that it will keep the Purchaser informed, on a current basis, of the status and terms of any proposal made by the Person requesting such waiver), (B) such waiver is limited to allowing the party subject to the standstill agreement (x) to submit to the Board of Directors of the Company, on a confidential basis, a written Acquisition Proposal and (y) if such Acquisition Proposal is a Qualified Acquisition Proposal, to pursue discussions and negotiations with respect to such Qualified Acquisition Proposal with the Company, and (C) the Company otherwise observes the terms of this Section 5.1 with respect to such Acquisition Proposal.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Res Care Inc /Ky/)
No Solicitation. From (a) During the date hereof until the Merger Pre-Closing Date or, if earlierPeriod, the termination of this Agreement in accordance with Article XII, SPAC Company shall not, and nor shall direct it authorize or knowingly permit any of the Sponsor and its controlled Affiliates and its and their respective officers, directors and or Representatives not to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or knowingly encourage, facilitate or pursue any inquiryassist, indication of interest, proposal or offer relating to an SPAC Acquisition Proposal, (bii) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any information relating to the Company and its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any of their Representatives) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries that would reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in or continue any discussions or negotiations with any third-party Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) with respect to an Acquisition Proposal, or (iv) enter into any Contract relating to an Acquisition Proposal (other than with Parent, Merger Sub or any designees of Parent or Merger Sub, or as expressly contemplated by this Agreement). To the extent permitted by applicable Law (and other applicable confidentiality obligations), the Company shall promptly, notify Parent in writing if any officer or director of the Company becomes aware of any receipt by the Company or a Subsidiary of the Company of any Acquisition Proposal or any inquiry with respect to, or furnish or make availablewhich would reasonably be expected to lead to, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (c) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From Such notification shall, unless prohibited by applicable confidentiality provisions, identify the Person making such request and after shall set forth the material terms of any Acquisition Proposal received.
(b) The Company shall promptly and in any event, no later than one (1) Business Day following the date hereofof this Agreement, SPAC shall, and shall direct any terminate the access of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons each Person (other than the Group Companies, the Shareholders parties hereto and their Representativesrespective Affiliates and representatives) with respect to a SPAC Acquisition Proposalthe “Project Orca” data room, and shall promptly request the return or destruction of all non-public information concerning the Company that has been furnished to any person or entity who was granted access to such data room prior to the date of this Agreement.
Appears in 1 contract
No Solicitation. From and after the date hereof of this Agreement until the Merger Closing Date or, if earlier, earlier to occur of the Effective Time or termination of this Agreement in accordance with Article XIIpursuant to its terms, SPAC shall notthe Company will not (unless otherwise compelled by law or order), and shall direct any of the Sponsor and Company will instruct its controlled Affiliates and its and their respective directors, officers, directors employees, representatives, investment bankers, agents and Representatives affiliates not to, directly or indirectly (a) solicitsolicit or encourage submission of any "Acquisition Proposal" (as defined herein) by any person, initiateentity or group (other than Parent and its affiliates, agents, and representatives) or (b) participate in any discussions or negotiations with, or pursue disclose any inquirynon-public information concerning the Company to, indication or afford access to the properties, books, or records of interestthe Company, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Parent and its affiliates, agents and representatives and except to other persons customarily provided such access and materials) in connection with any Acquisition Proposal with respect to the Company. For purposes of this Agreement, an "Acquisition Proposal" means any proposal or offer relating to an SPAC Acquisition Proposal(a) any merger, consolidation, sale or license of substantial assets or similar transactions involving the Company (other than sales or licenses of assets or inventory in the ordinary course of business or as permitted by this Agreement) or (b) participate sales by the Company of any Company Capital Stock (including, without limitation, by way of a tender offer or an exchange offer) (except discussions with potential investors regarding future financing in or continue the event Merger is not consummated). The Company, will immediately cease any discussions and all existing activities, discussion or negotiations with any third-party parties conducted heretofore with respect to, or furnish or make available, any information concerning SPAC to any third party relating to of the foregoing. The Company will promptly (a) notify Parent if, after the date of this Agreement, it receives any proposal or written inquiry or written request for information in connection with an SPAC Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or potential Acquisition Proposal and (cb) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter notify Parent of intent, memorandum the significant terms and conditions of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, or (d) grant any waiver, amendment or release under any confidentiality agreement or otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, Acquisition Proposal including the identity of the party making an SPAC Acquisition Proposal. From In addition, from and after the date hereofof this Agreement, SPAC shalluntil the earlier to occur of the Effective Time or termination of this Agreement pursuant to its terms, the Company will not, and shall direct any of the Sponsors and will instruct its controlled Affiliates and its and their respective directors, officers, directors employees, representatives, investment bankers, agents and Representatives affiliates not to, immediately cease and terminate all discussions and negotiations with directly or indirectly, make or authorize any Persons public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC Acquisition ProposalParent).
Appears in 1 contract
Sources: Merger Agreement (Informix Corp)
No Solicitation. From The Company and its Subsidiaries, and Parent and its Subsidiaries, shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. At all times during the date hereof period commencing with the execution and delivery of this Agreement and continuing until the Merger Closing Date or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Article XIIVIII hereof and the Effective Time, SPAC the Company and its Subsidiaries shall not, and nor shall direct they authorize or knowingly permit any of the Sponsor and its controlled Affiliates and its and their respective officersdirectors, directors and Representatives not officers or other employees, controlled affiliates, or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly indirectly, (ai) solicit, initiate, initiate or pursue any inquiry, indication knowingly encourage the making of interest, proposal or offer relating to an SPAC Acquisition Proposal, (bii) furnish to any Person (other than Parent, Merger Sub 1, Merger Sub 2 or any designees of Parent, Merger Sub 1 or Merger Sub 2) any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other than Parent, Merger Sub 1, Merger Sub 2 or any designees of Parent, Merger Sub 1 or Merger Sub 2) in connection with an Acquisition Proposal, or knowingly take any other action to assist or facilitate any inquiries or the making of any proposal that constitutes or is reasonably likely to lead to an Acquisition Proposal, (iii) participate or engage in or continue any discussions or negotiations with any third-party Person with respect to, or furnish or make available, any information concerning SPAC to any third party relating to an SPAC Acquisition Proposal, (iv) subject to Section 6.2(b), approve, endorse or recommend an Acquisition Proposal, or provide to any third-party access to the businesses, properties, assets or personnel of SPAC, in each case for the purpose of encouraging or facilitating an SPAC Acquisition Proposal or (cv) enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or other Contract contemplating an Acquisition Transaction; provided, however, that notwithstanding the foregoing, prior to the receipt of the Company Stockholder Approval, the Company and the Company Board may, directly or indirectly through advisors, agents, representatives or other intermediaries, (A) engage or participate in discussions or negotiations with any Person that has made an Acquisition Proposal in writing that was not solicited prior to the date of this Agreement in breach of that certain Exclusive Negotiation Agreement by and between the Company and Parent dated June 3, 2008 (the "Exclusivity Agreement") or after the date of this Agreement in breach of this Section 6.1(b) and that the Company Board determines in good faith (after consulting with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal and/or (B) furnish to any Person that has made an Acquisition Proposal in writing that was not solicited prior to the date of this Agreement in breach of the Exclusivity Agreement or after the date of this Agreement in breach of this Section 6.1(b) and that the Company Board determines in good faith (after consulting with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal, any information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement which contains terms with respect to confidentiality that are no less restrictive in principleall material respects than those contained in the Confidentiality Agreement, provided that in the case of any action taken pursuant to the foregoing clauses (A) or (B), promptly after 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 by the Company to Parent). 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 hereof and the Effective Time, Parent and its Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other agreement advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate or knowingly encourage the making of an Acquisition Proposal, (ii) furnish to any Person (other than the Company or any designees of the Company) any non-public information relating to Parent or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of Parent or any of its Subsidiaries to any Person (other than the Company or any designees of the Company) in connection with an Acquisition Proposal, or knowingly take any other action to assist or facilitate any inquiries or the making of any proposal that constitutes or is reasonably likely to lead to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to an SPAC Acquisition Proposal, (iv) subject to Section 6.4(b), approve, endorse or recommend an Acquisition Proposal, or (dv) grant enter into any waiverletter of intent, amendment memorandum of understanding or release under other Contract contemplating an Acquisition Transaction; provided, however, that notwithstanding the foregoing, Parent and the Parent Board may, directly or indirectly through advisors, agents, representatives or other intermediaries, (A) engage or participate in discussions or negotiations with any Person that has made an Acquisition Proposal in writing that was not solicited after the date of this Agreement in breach of this Section 6.1(c) and that the Parent Board determines in good faith (after consulting with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal and/or (B) furnish to any Person that has made an Acquisition Proposal in writing that was not solicited after the date of this Agreement in breach of this Section 6.1(c) and that the Parent Board determines in good faith (after consulting with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal, any information relating to Parent or any of its Subsidiaries pursuant to a confidentiality agreement which contains terms with respect to confidentiality that are no less restrictive in all material respects than those contained in the Confidentiality Agreement, provided that in the case of any action taken pursuant to the foregoing clauses (A) or otherwise knowingly facilitate (B), promptly after furnishing any non-public information to such inquiriesPerson, proposalsParent furnishes such non-public 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, discussionsParent, Merger Sub 1, Merger Sub 2 and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 6.1 by any directors or officers, controlled affiliates, or negotiations any investment banker, attorney or other advisor or representative retained by the Company or any effort of its Subsidiaries or attempt Parent or any of its Subsidiaries, as applicable, shall be deemed to be a breach of this Section 6.1 by the Company or Parent, as applicable. In addition to the obligations of the Company set forth in Sections 6.1(a) and (b) hereof, the Company shall promptly after any Person of the Company's directors, executive officers or financial advisors first obtain knowledge of the receipt thereof, and in all cases within one (1) Business Day thereafter, advise Parent orally and in writing of (i) any Acquisition Proposal or (ii) any request for information or inquiry that the Company determines in good faith is reasonably likely to make, lead to an SPAC Acquisition Proposal. From In addition to the obligations of Parent set forth in Sections 6.1(a) and after the date (c) hereof, SPAC shallParent shall promptly after any of Parent's directors, executive officers or financial advisors first obtain knowledge of the receipt thereof, and in all cases within one (1) Business Day thereafter, advise the Company orally and in writing of (i) any Acquisition Proposal or (ii) any request for information or inquiry that Parent determines in good faith is reasonably likely to lead to an Acquisition Proposal. The Company shall direct any keep Parent, or Parent shall keep the Company, as applicable, promptly and reasonably informed of the Sponsors status and its controlled Affiliates material terms and its and their respective officers, directors and Representatives to, immediately cease and terminate conditions (including all discussions and negotiations with material amendments or proposed material amendments) of any Persons (other than the Group Companies, the Shareholders and their Representatives) with respect to a SPAC such Acquisition Proposal, request or inquiry.
Appears in 1 contract
No Solicitation. From (a) Subject to the date hereof until the Merger Closing Date or, if earlier, the termination provisions of this Agreement in accordance with Article XIISection 5.23, SPAC shall Frontier will not, and shall direct any of the Sponsor will cause its Subsidiaries not to, and will cause Frontier’s and its controlled Affiliates and its and their Subsidiaries’ respective members, officers, directors directors, employees, Affiliates, agents and Representatives representatives not to, directly or indirectly indirectly, (ai) solicit, initiateinitiate or solicit or knowingly encourage any inquiries with respect to, or pursue the making of, any inquiryAcquisition Proposal or (ii) except as permitted below, indication of interest(A) engage in negotiations or discussions with or provide any information or data to, proposal or offer any Person relating to an SPAC Acquisition Proposal, (bB) participate approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (C) execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or continue other similar agreement relating to any Acquisition Proposal (other than a confidentiality agreement contemplated by Section 5.23(b)). Frontier shall, and shall cause each of its members, officers, directors, employees, Affiliates, agents and representatives to, (i) immediately cease any solicitations, discussions or negotiations with any third-party Person (other than EQBK or Merger Sub) conducted heretofore with respect toto any Acquisition Proposal and promptly request return or destruction of confidential information related thereto, (ii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its members, officers, directors, employees, Affiliates, agents and representatives is a party and (iii) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the approval of the Frontier unitholders, in the event that Frontier receives a bona fide Acquisition Proposal that is not received in violation of this Section 5.23, Frontier and the Frontier Board may participate in discussions or negotiations with, or furnish or make availableany information to, any Person making such Acquisition Proposal and its agents and representatives or potential sources of debt financing that need to be involved in such discussion, provided that (i) the Frontier Board determines in good faith, after consultation with its counsel and financial advisor, that such Person is reasonably likely to submit to Frontier a Superior Proposal, and (ii) that failure to take such action would reasonably be expected to be inconsistent with their fiduciary duties; provided, however, that, prior to providing any nonpublic information to such Person or participating in discussions or negotiations with such Person, Frontier shall have entered into a confidentiality agreement with such Person on terms that are substantially similar to the confidentiality provisions of the Confidentiality Agreement and that any nonpublic information concerning SPAC Frontier and its Subsidiaries provided to such Person, to the extent not previously provided to EQBK, is promptly provided to EQBK. In addition, nothing herein shall restrict Frontier from complying with its disclosure obligations with regard to any third party relating to an SPAC Acquisition Proposal under applicable Law.
(c) Frontier will promptly (and in any event within 48 hours) notify EQBK of the receipt by Frontier of any Acquisition Proposal, or provide to any third-party access which notice shall include the material terms of and identity of the Person(s) making such Acquisition Proposal. Frontier will (subject to the businesses, properties, assets or personnel fiduciary duties of SPAC, in each case for the purpose members) keep EQBK reasonably informed of encouraging or facilitating an SPAC the status and material terms and conditions of any such Acquisition Proposal and of any material amendments or proposed material amendments thereto and will promptly notify EQBK of any determination by the Frontier Board that such Acquisition Proposal constitutes a Superior Proposal.
(cd) The Frontier Board may, at any time prior to obtaining the approval of the Frontier unitholders, (i) approve, endorse or recommend a Superior Proposal or enter into any binding understanding, binding arrangement, acquisition agreement, merger agreement or similar a definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement with respect to an SPAC Acquisition Proposal, a Superior Proposal or (dii) grant any waivermodify or amend in a manner adverse to EQBK or withdraw Frontier Recommendation ((i) or (ii) above being referred to as a “Change in Recommendation”), amendment or release under any confidentiality agreement or otherwise knowingly facilitate any provided that (x) prior to such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make, an SPAC Acquisition Proposal. From and after the date hereof, SPAC shall, and shall direct any of the Sponsors and its controlled Affiliates and its and their respective officers, directors and Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Group CompaniesChange in Recommendation, the Shareholders Frontier Board shall determine, in good faith (after consultation with its counsel), that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and their Representatives(y) such Change in Recommendation is in connection with a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account any action taken by EQBK pursuant to Section 5.23(e).
(e) Notwithstanding anything to the contrary contained in this Agreement, Frontier may not terminate this Agreement to enter into a definitive agreement with respect to a SPAC Acquisition Superior Proposal unless (i) it notifies EQBK in writing of its intention to take such action at least five (5) Business Days prior to taking such action, specifying the material terms of any applicable Superior Proposal, identifying the Person(s) making such Superior Proposal and providing EQBK an unredacted copy of all of the agreements with the party making such Superior Proposal, (ii) EQBK does not make, after being provided with reasonable opportunity to negotiate with Frontier and its agents and representatives, within such five (5) Business Day period, irrevocable adjustments in the terms and conditions of this Agreement that the Frontier Board determines, in good faith after consultation with its counsel and financial advisors, is at least as favorable to Frontier’s unitholders as such Superior Proposal and (iii) Frontier is not in material breach of this Section 5.23.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Equity Bancshares Inc)