No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.
Appears in 2 contracts
Sources: Merger Agreement (Jupiter Partners Lp), Merger Agreement (Pca International Inc)
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (and the The Company shall use not and shall not authorize or permit its best efforts to cause its directors, officers, directors, employees, advisors agents, representatives and agentsinvestment bankers (with respect to any Person, including, but not limited the foregoing Persons are referred to herein as such Person's "Representatives") to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, initiate, endorse or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.04(b), (i) conduct, continue or engage in or otherwise participate in or initiate any discussions (other than to inform a Person of the existence of this provisions of this Section 6.04) or negotiations with, or provide disclose any non-public information torelating to the Company, any corporationafford access to the business, partnershipemployees, person or other entity or group (other than Mergercoproperties, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale books or records of shares of capital stock or debt securities or similar transactions involving the Company or knowingly assist, participate in, facilitate or encourage any Subsidiaryeffort by, division any third party that is seeking to make, or operating has made, any Takeover Proposal, (ii) (A) amend or principal business unit grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 203 of the DGCL, (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or (iv) resolve, propose, or agree to do any of the foregoing (each, a "Company Acquisition Agreement"). Subject to Section 6.04(b), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). The Company will shall cease immediately cease and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations negotiations, if any, with any parties third party conducted heretofore prior to the date hereof with respect to any Takeover Proposal and shall use its commercially reasonable efforts to cause any 26995100v.1 such third party (or its agents or advisors) in possession of the foregoing. Notwithstanding the foregoing, the Company may furnish non-public information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors respect of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors that was furnished by or on behalf of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information promptly return 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry destroy (and will disclose any written materials received by the Company in connection with confirm destruction of) all such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactioninformation.
Appears in 2 contracts
Sources: Merger Agreement (Nanosphere Inc), Merger Agreement (Nanosphere Inc)
No Solicitation. Neither (a) Except as set forth in this Section 6.1, the Company shall not, nor shall it authorize or permit its Subsidiary or any of its Subsidiaries or affiliates shall (their respective directors, officers or employees to, and the Company it shall use its reasonable best efforts to cause the Company’s and its officers, directors, employees, representatives and agents, including, but not limited toSubsidiary’s Affiliates, investment bankers, attorneys and attorneys, accountants or other advisors, agents or representatives (such directors, officers, employees, Affiliates, investment bankers, attorneys, accountants, other advisors, agents and representatives, collectively, “Representatives”) not to), directly or indirectly, encourage, :
(i) solicit, participate in initiate, propose, knowingly encourage or initiate discussions knowingly take any other action to facilitate any inquiries or negotiations withthe making of any proposal or offer that constitutes, or provide any information could reasonably be expected to lead to, any corporationAcquisition Proposal, partnershipincluding (A) approving any transaction under Section 7-5.2-4 of the Rhode Island Business Combination Act, (B) approving any person becoming an “interested shareholder” under Section 7-5.2-4 of the Rhode Island Business Combination Act and (C) amending or other entity granting any waiver or group (other than Mergerco, release under any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities standstill or similar transactions involving agreement with respect to any Company Common Shares (except for any portion of any such standstill or similar agreement that restricts the ability of a person to privately communicate an Acquisition Proposal to the Company, the Company Board or any Subsidiarycommittee thereof); or
(ii) enter into, division continue or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease otherwise participate in any existing activitiescommunications, discussions or negotiations with regarding, furnish to any parties conducted heretofore person any information or data with respect to, knowingly assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly cooperate in any way with, any Acquisition Proposal (other than to any advise such person of the foregoingCompany’s obligations under this Section 6.1). Notwithstanding the foregoing, prior to the receipt of the Company may furnish information concerning its businessShareholder Approval (the “Specified Time”), properties or assets the Company may, in response to any corporationa bona fide, 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 unsolicited written Acquisition Proposal (that has not been withdrawn) made or received after the date of this Agreement, in each case that did not result from a breach by the Company of this Section 6.1, (x) if such entity contact the person or group of persons who has on an unsolicited basis submitted a bona fide written proposal made such Acquisition Proposal in order to clarify terms for the Board of Directors sole purpose of the Company relating Board informing itself about such Acquisition Proposal in order to any assess whether such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents proposal is reasonably likely to lead to a superior transaction to the Merger for the shareholders of the Company, Superior Proposal and (y) if the Company Board of Directors reasonably determines in good faith after consultation with outside counsel and the Financial Advisor or another nationally recognized independent financial advisor that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and that the failure to take such action would be inconsistent with the fiduciary duties of the Company determinesBoard under applicable Law, only after receipt of advice from independent legal counsel (1) furnish information or data with respect to the Company to the person making such Acquisition Proposal and firmits Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement (a copy of which shall be provided to the Parent within 48 hours of being fully executed) (provided that such confidentiality agreement shall not be required to restrict a person from privately communicating an Acquisition Proposal to the Company, the Company Board or any committee thereof, and provided further that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of otherwise prohibiting the Company from complying with any provisions of this Section 6.1) and (2) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.1(a) by any director, officer or employee of the Company or its Subsidiary, whether or not such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 6.1(a) by the Company.
(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 to any third party to withhold, withdraw, qualify or modify, in a manner adverse to the Parent or the Merger Sub, the approval or recommendation by the Company Board or any such committee of this Agreement or the Merger;
(ii) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement constituting or relating to, or that could reasonably be expected to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iii) adopt, approve or recommend, or propose to adopt, approve or recommend, any Acquisition Proposal. Notwithstanding the foregoing, provided the Company shall not have breached in a material respect its obligations under Section 6.1(a), the Company Board may withdraw or modify the recommendation by the Company Board or any committee thereof of this Agreement or the Merger if:
(A) the Company Board determines in good faith, after consultation with outside counsel and the Financial Advisor or another nationally recognized independent financial advisor, that the failure to provide take such information or access or to engage in such discussions or negotiations action would cause be inconsistent with the Board of Directors to violate its fiduciary duties of the Company Board to the shareholders of the Company either (1) based upon a material development or change that impacts the Company (other than an Acquisition Proposal) that was neither known to, nor reasonably foreseeable by, the Company Board or management of the Company or its Subsidiary as of or prior to the date hereof (it being agreed that the results of the introduction of new or modified products or the results of sales or marketing initiatives (including any increase in sales as a result thereof whether to new or existing customers) are reasonably foreseeable and shall not be considered a material development or change in circumstances) (such material development or change in circumstances, an “Intervening Event”) or (2) the Company Board determines in good faith after consultation with its outside counsel and the Financial Advisor or another nationally recognized independent financial advisor that the Company has received an Acquisition Proposal that constitutes a Superior Proposal, but in each case only at a time that is prior to the Specified Time and is after 11:59 pm, New York City time, on the fourth business day following the Parent’s receipt of written notice (an “Adverse Recommendation Notice”) advising the Parent that the Company Board desires to withdraw or modify the recommendation (and the manner and timing in which it intends to do so, and in the case of an Intervening Event, specifying the reasons therefor in reasonable detail) (such four business day period, the “Notice Period”); and
(B) the Company provides the Parent with a reasonable opportunity to make adjustments in the terms and conditions of this Agreement and negotiates in good faith with the Parent with respect thereto during the Notice Period, in each case as would enable the Company Board or committee thereof to conclude that (1) the Intervening Event is no longer a basis for any Company Adverse Recommendation Change or (2) the Acquisition Proposal that was determined to be a Superior Proposal is no longer a Superior Proposal. Any material changes to the financial terms or any material change to other material terms of such Superior Proposal occurring prior to the Company Board’s effecting a Company Adverse Recommendation Change pursuant to this Section 6.1(b) shall require the Company to provide to the Parent a new Adverse Recommendation Notice and a new Notice Period and to comply with the requirements of this Section 6.1(b) with respect to each such Adverse Recommendation Notice, except that the references to the “fourth business day” shall be deemed to be to the “second business day.” Any Company Adverse Recommendation Change shall not change the approval of this Agreement or any other approval of the Company Board, including in any respect that would have the effect of causing any state (including Rhode Island) corporate takeover statute or other similar statute to be applicable to the transactions contemplated hereby or thereby, including the Merger. Nothing in this Section 6.1 (but subject to the provisions of Section 8.1(d)(ii), if applicable) shall be deemed to (A) permit the Company to take any action described in clauses (ii) or (iii) of the first sentence of this Section 6.1(b) or (B) limit the Company's shareholders under applicable law’s obligation to call, give notice of, convene and hold the Company Meeting, regardless of whether the Company Board has withdrawn or modified its recommendation of this Agreement and the Merger.
(c) The Company shall promptly advise the Parent orally, with written confirmation to follow within 48 hours, of any Acquisition Proposal or any request for nonpublic information 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 immediately (i) keep the Parent reasonably informed, on a prompt basis, of the status and details (including any change to the terms) of any such Acquisition Proposal or inquiry and (ii) provide to the Parent as soon as practicable (and in any event within 24 48 hours) communicate after receipt or delivery thereof copies of all material correspondence and other material written material sent or provided to Mergerco the terms 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. Contemporaneously with providing any information to a third party in connection with any such Acquisition Proposal or inquiry, the Company shall furnish a copy of such information to the Parent.
(d) Nothing in this Agreement shall restrict the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or taking or disclosing a position contemplated by Rules 14d-9 or 14e-2(a) under the Exchange Act, or otherwise making disclosure to comply with applicable Law; provided, that any proposalsuch disclosure that constitutes a Company Adverse Recommendation Change shall be subject to Section 6.1(b). For the avoidance of doubt, discussiona factually accurate public statement that describes the receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto (without including such a reaffirmation of the recommendation of the Company Board of this Agreement) shall not be deemed a Company Adverse Recommendation Change.
(e) The Company shall, negotiation and shall cause its Subsidiary and its and their Representatives to, cease immediately all communications, discussions and negotiations regarding any proposal that constitutes, or inquiry may reasonably be expected to lead to, an Acquisition Proposal.
(and will disclose f) Except as set forth in Section 6.1(a)(i)(C), the Company agrees to enforce or cause to be enforced each confidentiality, “standstill” or similar agreement to which the Company or any written materials received Subsidiary of the Company is a party at the request of the Parent, including by seeking specific performance of, or injunctive or other equitable relief under, any such agreements, provided that any expenses incurred by the Company in connection with such proposal, discussion, negotiation or inquiryenforcement shall reduce the Target Cash Amounts.
(g) and the identity For purposes of the party making such proposal or inquiry which it may receive in respect of any such transaction.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Essilor International /Fi), Merger Agreement (Costa Inc)
No Solicitation. Neither the (a) The Company nor shall not, and shall not authorize any of its Subsidiaries to, and shall not authorize any officer, director or affiliates shall (employee of or any financial advisor, attorney or other advisor or representative of, the Company or any of its Subsidiaries to, and the Company shall use its best efforts to cause instruct its officers, directors, employees, representatives financial advisors and agents, including, but attorneys not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, to (i) solicit, initiate or encourage the submission of, any Takeover Proposal, (ii) enter into any agreement with respect to or approve or recommend any Takeover Proposal or (iii) participate in or initiate any discussions or negotiations withregarding, or provide furnish to any person any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving with respect to the Company or any SubsidiarySubsidiary in connection with, division or operating take any other action to facilitate any inquiries or principal business unit the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal; provided, however, that nothing contained in this Agreement shall prohibit the Company or its directors from (an "Acquisition Proposal"). The Company will immediately cease any existing activitiesi) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making such disclosure to the Company's stockholders as, discussions or negotiations with any parties conducted heretofore with respect to any in the good faith judgment of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating after consultation with its independent legal counsel, is required under applicable law or (ii) referring a third party to this Section 5.2(a) or making a copy of this Section 5.2(a) available to any such transaction which third party; and provided, further, that nothing in this Agreement shall prohibit the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction Company from furnishing information to, or entering into or participating in discussions or negotiations with, any person who makes an unsolicited bona fide written Takeover Proposal if, and only to the Merger extent that:
(A) Sub has not accepted Shares for payment pursuant to the shareholders of the Company, and Offer,
(yB) if the Board of Directors of the Company determinesCompany, only after receipt of advice from consultation with its independent legal counsel counsel, determines in good faith that taking such action is necessary for such Board to the comply with its fiduciary duties to Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause stockholders under applicable law,
(C) the Board of Directors of the Company, after consultation with its financial advisors, determines in good faith that such Takeover Proposal, taking into account all legal, financial and regulatory aspects of such proposal and the person making such proposal, could lead to violate a Superior Proposal and
(D) prior to taking such action, the Company provides the notice to Parent contemplated by Section 5.2(b) and receives from the person making such Takeover Proposal an executed confidentiality agreement in reasonably customary form and in any event containing terms, taken as a whole, at least as stringent as those contained in the Confidentiality Agreement. The Company shall, and shall instruct its fiduciary duties financial advisor, attorneys or other representatives to, immediately cease any discussions or negotiations, if any, existing at the date hereof with any persons conducted heretofore with respect to any Takeover Proposal.
(b) The Company shall advise Parent in writing of (i) any Takeover Proposal or any inquiry with respect to or which could reasonably be expected to lead to any Takeover Proposal received by any officer or director of the Company or, to the Knowledge of the Company's shareholders under applicable law, any financial advisor, attorney or other advisor or representative of the Company, (ii) the material terms of such Takeover Proposal (including a copy of any written proposal), and (iii) the identity of the person making any such Takeover Proposal or inquiry. The Company shall immediately (use reasonable best efforts to so advise Parent no later than 24 hours following receipt of such Takeover Proposal or inquiry and shall so advise Parent no later than 48 hours following receipt of such Takeover Proposal or inquiry. If the Company intends to furnish any Person with any information with respect to any Takeover Proposal in any event within 24 hours) communicate to Mergerco accordance with Section 5.2(a), the Company shall advise Parent in writing of such intention in advance of providing such information. The Company will keep Parent fully informed of the status and material terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation Takeover Proposal or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.
Appears in 2 contracts
Sources: Merger Agreement (Verio Inc), Merger Agreement (Nippon Telegraph & Telephone Corp)
No Solicitation. Neither (a) Subject to Section 4.3, JP for itself and in its capacity as the Company nor sole general partner of PDC LP (i) shall not, and shall not authorize or permit, directly or indirectly, any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officersofficer, directorsdirector, employeesemployee, representatives and agentsAffiliate, including, but not limited toagent, investment bankersbanker, attorneys and accountantsfinancial advisor, not toattorney, accountant, broker, finder, consultant or other representative of JP, PDC LP or any other JP Subsidiary (each, a "JP Representative") to invite, initiate, solicit, encourage or facilitate (including by way of furnishing nonpublic information or assistance or by amending or granting any waiver under the JP Rights Agreement), directly or indirectly, encourageany inquiries or the making of any proposal (including, solicitwithout limitation, participate in any proposal or initiate discussions offer to its stockholders, the partners of PDC LP or negotiations withother holders of equity securities of JP, PDC LP or any other JP Subsidiary) or other action that constitutes, or provide any information may reasonably be expected to lead to, any corporationCompeting Transaction (as herein defined), partnershipor enter into, person maintain, or continue discussions or negotiate with any Person in furtherance of such inquiries or in order to obtain a Competing Transaction or publicly propose to do any of the foregoing and (ii) will take the reasonable steps necessary to inform JP Representatives of the obligations undertaken in this Section 4.2 and to cause them to comply with all such obligations.
(b) JP shall notify GGP and GGP Partnership orally and in writing (as promptly as practicable but in any event within 48 hours) of its receipt of any inquiries and proposals (including the identity of the parties, price and all other entity material terms thereof) and shall provide GGP a copy of all written inquiries, proposals or group (other than Mergercorequests which it, PDC LP, any of its affiliates or representatives) concerning any mergerother JP Subsidiary, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit JP Representative may receive relating to any of the Company such matters and shall promptly (an "Acquisition Proposal"). The Company will immediately cease but in any existing activities, discussions or negotiations with any parties conducted heretofore event within 48 hours) inform GGP and GGP Partnership orally and in writing with respect to any such inquiry or proposal that becomes reasonably likely to lead to a Superior Competing Transaction (as defined herein).
(c) For purposes of this Agreement, a "Competing Transaction" shall mean any of the following, whether occurring directly or indirectly (other than the transactions expressly provided for in this Agreement): (i) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving JP (or any of the JP Subsidiaries, including PDC LP); (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the assets or equity securities of JP, PDC LP or any other JP Subsidiary in a single transaction or series of related transactions, excluding any bona fide financing transactions which do not, individually or in the aggregate, have as a purpose or effect the sale or transfer of control of such assets; (iii) any tender offer or exchange offer for 20% or more of the outstanding equity securities of JP, PDC LP or any other JP Subsidiary or any transaction resulting in the issuance of such amount of securities; 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. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.
Appears in 2 contracts
Sources: Merger Agreement (General Growth Properties Inc), Merger Agreement (Price Development Co Lp)
No Solicitation. Neither (a) The Company agrees that, prior to the Company nor Effective Time, it shall not, and shall not authorize or permit any of its Subsidiaries subsidiaries or affiliates shall (and the Company shall use any of its best efforts to cause or its subsidiaries' directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), or other agents or representatives to directly or indirectly, encourage, solicit, participate in initiate or initiate discussions encourage any inquiries or negotiations with, the making of any proposal or provide any information toabout the Company or its subsidiaries with respect to any merger, consolidation or other business combination involving the Company or its subsidiaries or their respective assets or capital stock (a "TAKEOVER PROPOSAL") or negotiate, explore or otherwise engage in discussions with any corporation, partnership, person or other entity or group (other than MergercoMerger Sub, any of its affiliates or representatives) concerning any merger(collectively, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an a "Acquisition ProposalPERSON"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore ) with respect to any of the foregoing. Notwithstanding the foregoingTakeover Proposal or enter into any agreement, the Company may furnish information concerning its businessarrangement or understanding requiring it to abandon, properties terminate or assets fail to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to consummate the Merger for the shareholders of the Companyor any other transactions contemplated by this Agreement; provided, and (y) however, that if the Board of Directors of the Company determinesor the Special Committee determines in good faith, only after receipt of advice from independent legal counsel to the Company and firmconsultation with outside counsel, that the failure it is advisable to provide such information or access or do so in order to engage act in such discussions or negotiations would cause the Board of Directors to violate a manner consistent with its fiduciary duties to the Company's shareholders stockholders under applicable law. The , the Company may, in response to what the Board of Directors in good faith reasonably believes may be a Superior Proposal (as defined below), which proposal was not solicited by it and which did not otherwise result from a breach of this Section 6.04, and subject to providing prior written notice of its decision to take such action to Merger Sub and compliance with the other requirements of this Section 6.04, (i) furnish information with respect to the Company and its subsidiaries to any Person making a Superior Proposal pursuant to a customary confidentiality agreement and (ii) participate in discussions or negotiations regarding and execute any agreements (including but not limited to any Acquisition Agreement), in connection with such Superior Proposal.
(b) Except as expressly permitted by this Agreement, neither the Board of Directors of the Company nor the Special Committee shall (i) withdraw or modify , or propose publicly to withdraw or modify, in a manner adverse to Merger Sub, the approval or recommendation by the Board of Directors of the Company or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend any Takeover Proposal, or (iii) cause the Company to enter into any Acquisition Agreement.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 6.04, the Company shall immediately promptly (and in any event within 24 hoursone day) communicate to Mergerco the terms advise Merger Sub orally and in writing of any proposalrequest for information or any Takeover Proposal, discussion, negotiation the material terms and conditions of such request or inquiry Takeover Proposal (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation amendments or inquiryproposed amendments thereto) and the identity of the party person making such proposal request or inquiry which it may receive Takeover Proposal.
(d) Nothing contained in this Section 6.04 shall prohibit the Company or its Board of Directors, upon the recommendation of the Special Committee, from 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(a) promulgated under the Exchange Act or from making such disclosure to the Company's stockholders or otherwise which, in the judgment of the Special Committee upon advice of legal counsel, is advisable under applicable law or rules of any such transactionstock exchange; provided, however, that, except as contemplated by clause (b) of this Section 6.04, neither the Company nor the Board of Directors nor the Special Committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, its position with respect to this Agreement or the Merger or approve or recommend, or propose publicly to approve or recommend, a Takeover Proposal.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (BNMC Acquisition Co), Merger Agreement (Buckley Evan R)
No Solicitation. Neither the Company nor any of The Company, its Subsidiaries or affiliates shall (subsidiaries and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives and agentsadvisors shall immediately cease any existing discussions or negotiations, includingif any, but not limited towith any parties conducted heretofore with respect to any Acquisition Proposal; provided that following the cessation of any such discussions or negotiations, investment bankersfuture discussions or negotiations with any such parties shall be governed solely by the provision of this Section 6.4 other than this sentence. Except pursuant to this Agreement, attorneys and accountantsneither the Company or any of its subsidiaries, not to)nor any of their respective officers, directors, employees or representatives or advisors, shall, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than MergercoParent and Merger Sub or any affiliate, any associate or designee of its affiliates Parent or representativesMerger Sub) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company proposal (an "Acquisition Proposal"). The Company will immediately cease ) for an acquisition of all or any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any substantial part of the foregoingbusiness and properties or capital stock of the Company and its subsidiaries taken as a whole, directly or indirectly, whether by merger, consolidation, share exchange, tender offer, purchase of assets or shares of capital stock or otherwise (an "Acquisition Transaction"). Notwithstanding the foregoing, (a) the Board may take, and disclose to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer for shares of capital stock of the Company; provided, that the Board shall not recommend that the stockholders of the Company may tender their shares in connection with any such tender offer unless the Board shall have determined in good faith, after consultation with outside counsel that failing to take such action would constitute a breach of the Board's fiduciary duty under applicable law; (b) the Company may, directly or indirectly, furnish information concerning its businessand access, properties or assets in each case only in response to unsolicited requests therefor, to any corporation, partnership, person or other entity or group pursuant to appropriate customary confidentiality agreements, and may negotiate and participate in discussions and negotiations negotiate with such entity person or group concerning an any Acquisition Proposal (x) Proposal, if such entity person or group has on an unsolicited basis submitted a bona fide written Acquisition Proposal to the Board and the Board determines in its good faith judgment, after consultation with outside counsel that failing to take such action would constitute a breach of the Board's fiduciary duty under applicable law; and (c) the Company may take the actions described in Section 8.1(c). The Board shall notify Parent immediately if any such Acquisition Proposal is made and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal and, subject to the fiduciary duties of the Board of Directors under applicable law, shall keep Parent promptly advised of the Company relating all developments which could reasonably be expected to any such transaction which culminate in the Board of Directors determines (based upon the advice withdrawing, modifying or amending its recommendation of independent investment bankers for the Company) represents a superior transaction to the Merger for and the shareholders other transactions contemplated by this Agreement. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board shall have determined in good faith, that failing to release such third party or waive such provisions would constitute a breach of the Company, and (y) if fiduciary duties of the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.
Appears in 2 contracts
Sources: Merger Agreement (Genesis Eldercare Acquisition Corp), Merger Agreement (Multicare Companies Inc)
No Solicitation. Neither (a) None of SESI and its Subsidiaries, Cardinal and Cardinal Services will (nor will they permit any of their respective Affiliates, officers, directors, representatives, or agents to), prior to the Company nor earlier of the Closing Date or the termination of this Agreement pursuant to Section 8.1, directly or indirectly, (i) solicit, initiate or encourage the submission of any proposal for a Sale Transaction, (ii) enter into any agreement with respect to any Sale Transaction or give any approval with respect to any Sale Transaction, or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Sale Transaction or any proposal for a Sale Transaction. Notwithstanding the preceding sentence, if at any time the Board of Directors of SESI or Cardinal determines in good faith, based on the advice of outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to its stockholders under Applicable Law, SESI or Cardinal (and their respective officers, directors, representatives or agents) may in response to a written proposal for a Sale Transaction not solicited on or after the date hereof, subject to compliance with Section 6.12(c), (A) furnish information with respect to itself or a Subsidiary pursuant to a customary confidentiality agreement to any Person making such proposal, and (B) participate in negotiations regarding such proposal. Without limiting the foregoing, it is understood that any violations of the restrictions set forth in this Section 6.12(a) by any of a party's officers, directors, representatives, agents, Affiliates or Subsidiaries, whether or not such Person is purporting to act on behalf of such party or any of its Subsidiaries or affiliates otherwise, shall be deemed to be a breach of this Section 6.12(a) by such party.
(b) Neither of the Boards of Directors of SESI or Cardinal shall (and i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, approval (including, but not limited towithout limitation, investment bankers, attorneys and accountants, not to), directly the Board of Directors' resolution providing for such approval) of this Agreement or indirectly, encourage, solicit, participate in the transactions contemplated hereby or initiate discussions (ii) approve or negotiations withrecommend, or provide any information topropose to approve or recommend, any corporationSale Transaction, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving except in the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to event the Board of Directors of the Company relating to any such transaction which the Board of Directors a party determines (in good faith, based upon on the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firmoutside counsel, that the failure it is necessary to provide such information or access or do so in order to engage in such discussions or negotiations would cause the Board of Directors to violate comply with its fiduciary duties to its stockholders under Applicable Law, and then only at or after the Company's shareholders under applicable law. The Company termination of this Agreement pursuant to Section 8.1(f) or 8.1(g).
(c) In addition to the obligations set forth in subsections (a) and (b) of this Section 6.12, each party promptly shall immediately (advise the others orally and in any event within 24 hours) communicate to Mergerco the terms writing of any proposalrequest for information or of any proposed Sale Transaction or any inquiry with respect to or which could reasonably be expected to lead to any proposed Sale Transaction, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party Person making any such proposal request, proposed Sale Transaction or inquiry which it may receive in respect and the terms and conditions thereof. Each party will keep the others fully informed of the status and details (including amendments or proposed amendments) of any such transactionrequest, proposed Sale Transaction or inquiry, and each party shall keep confidential such information provided to it by another party pursuant to this Section 6.12(c), subject to any judicial or other legal order, directions or obligations to disclose such information.
(d) Nothing contained in this Section 6.12 shall prohibit SESI from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Superior Energy Services Inc), Merger Agreement (Superior Energy Services Inc)
No Solicitation. Neither the Company nor any of its Subsidiaries The Shareholder agrees that he or affiliates she shall (not, and the Company Shareholder shall direct and use its his or her reasonable best efforts to cause its officers, directors, employees, his or her agents and representatives and agents, (including, but not limited towithout limitation, any investment bankersbanker, attorneys and accountants, attorney or accountant retained by the Shareholder) not to), directly or indirectly, encourage(a) initiate, solicit, participate in knowingly encourage or initiate discussions knowingly facilitate any inquiries or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore proposals with respect to any Acquisition Proposal with respect to Signature, (b) engage or participate in any negotiations with any person concerning any Acquisition Proposal with respect to Signature, (c) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to an Acquisition Proposal with respect to Signature, (d) enter into any term sheet, letter of intent, indication of interest, commitment, memorandum of understanding, agreement in principle, stock acquisition or disposition agreement, or other agreement (whether written or oral, binding or non-binding) in connection with or relating to any Acquisition Proposal with respect to Signature, or (e) solicit proxies or initiate a shareholder vote with respect to an Acquisition Proposal with respect to Signature or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal with respect to Signature, except in each case to notify a person that has made or, to the knowledge of the foregoingShareholder, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 5. Notwithstanding the foregoing, in the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate event Signature is engaging in discussions and or negotiations with such entity or group concerning a person making an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors in accordance with Section 6.12 of the Company relating Merger Agreement with respect to such Acquisition Proposal, the Shareholder and his or her agents and representatives (including, without limitation, any such transaction which investment banker, attorney or accountant retained by the Board of Directors determines (based upon the advice of independent investment bankers for the CompanyShareholder) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or shall be entitled to engage in such any discussions or negotiations would cause the Board of Directors that Signature is permitted to violate its fiduciary duties engage in pursuant to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity Section 6.12 of the party making Merger Agreement with respect to such proposal or inquiry which it may receive in respect of any such transactionAcquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Esquire Financial Holdings, Inc.), Voting Agreement (Esquire Financial Holdings, Inc.)
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (and the a) The Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)not, directly or indirectly, encouragethrough any of its officers or directors or any employee, representative or agent of the Company or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) acting, directly or indirectly, at the direction of any officer or director of the Company, (i) initiate, solicit, participate or knowingly encourage inquiries or proposals with respect to an Acquisition Proposal other than from Parent, (ii) engage in any discussions or initiate negotiations concerning, or provide any confidential information or data to any third party in connection with an Acquisition Proposal (except to notify such person as to the existence of the provisions of this Section 6.06), or knowingly take any other action with the purpose or intention of facilitating any other inquiries or the making of any proposal that constitutes, or that reasonably may be expected to lead to, any Acquisition Proposal, or (iii) except as permitted by Section 6.06(f) below, enter into any agreement (other than a confidentiality agreement permitted by (C) below) with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal. Notwithstanding the foregoing, prior to the Acceptance Date, the Company may, in response to an unsolicited Acquisition Proposal received by the Company which did not result from a breach of this Section 6.06, furnish information to, or enter into discussions or negotiations with, or provide waive any standstill with, any person that has made, an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) such Acquisition Proposal constitutes a Superior Proposal or the Company Board, after consulting with the Company’s outside legal and financial advisors, determines in good faith that such Acquisition Proposal, after furnishing such information and entering into such discussions or negotiations, could reasonably be expected to result in a Superior Proposal, (B) the Company and its Subsidiaries are otherwise in compliance with this Section 6.06 (including, prior to furnishing such information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, entering into discussions or negotiations with, such person, by providing written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person), (C) prior to furnishing such information, the Company receives from such person an executed confidentiality agreement with any parties conducted heretofore terms substantially similar to and no less favorable to the Company than those contained in the Confidentiality Agreement; provided, however, that the Company may enter into discussions or negotiations solely with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate entering into such confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Companyagreement without breaching this Section 6.06, and (yD) if the Board of Directors Company keeps Parent informed, on a reasonably current basis, of the Company determines, only after receipt status of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage in any such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. as provided above.
(b) The Company shall immediately promptly (and, in any event event, within 24 hourstwo Business Days) communicate to Mergerco notify Parent of the terms existence of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such respect to any Acquisition Proposal, the material terms and conditions of any proposal, discussion, negotiation or inquiry) inquiry that it may receive and the identity of the party person making such proposal or inquiry which it may receive in respect inquiry, and any modification of or amendment thereto, and will keep Parent reasonably apprised of any related developments, discussions, and negotiations.
(c) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any persons (other than Parent) conducted heretofore with respect to any Acquisition Proposal.
(d) Nothing contained in this Section 6.06 shall prohibit the Company or the Company Board from (i) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the Company’s shareholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure to make such transactiondisclosure would be inconsistent with applicable law.
(e) Except as set forth in this Section 6.06(e), neither the Company Board nor any committee thereof shall (i) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, (ii) cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement with respect to any Acquisition Proposal or (iii) withdraw or modify in a manner adverse to Parent or Purchaser, or publicly propose to withdraw or modify in a manner adverse to Parent or Purchaser, the Company Board Recommendation. Notwithstanding the foregoing provisions of this Section 6.06(e), the Company Board may, at any time, withdraw, modify or amend the Company Board Recommendation (a “Company Board Change of Recommendation”) if the Company Board has concluded in good faith, after consultation with the Company’s outside legal advisors, that the failure of the Company Board to effect a Company Board Change of Recommendation would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s shareholders under applicable law.
(f) Notwithstanding anything in this Section 6.06 to the contrary, at any time prior to the Acceptance Date, the Company Board (or any duly constituted committee of the Company Board) may, in response to a Superior Proposal that did not result from a breach of this Section 6.06, cause the Company to terminate this Agreement pursuant to Section 8.01(f) and concurrently with such termination enter into a definitive agreement providing for the transactions contemplated by such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 8.01(f), and any purported termination pursuant to Section 8.01(f) shall be void and of no force or effect, unless, the Company shall have complied with all the provisions of this Section 6.06, including the notification provisions in this Section 6.06(f), and with all applicable requirements of Section 8.03 (including the payment of the Termination Fee prior to or concurrently with such termination) in connection with such Superior Proposal; and provided further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to Section 8.01(f): (1) until after the fifth Business Day following actual receipt by Parent of written notice from the Company advising Parent that the Company has received a Superior Proposal, specifying the material terms and conditions of the Superior Proposal and attaching the most current versions of the definitive agreement, all exhibits and other attachments thereto and agreements (such as stockholder agreements) ancillary thereto to effect such Superior Proposal, and identifying the Person making such Superior Proposal (a “Notice of Superior Proposal”) and stating that the Company Board intends to cause the Company to exercise its right to terminate this Agreement pursuant to Section 8.01(f) (it being understood and agreed that, prior to any termination pursuant to Section 8.01(f) taking effect, any amendment to the price or any other material term of a Superior Proposal (such amended Superior Proposal, a “Modified Superior Proposal”) shall require a new Notice of Superior Proposal and a new five Business Day period with respect to such Modified Superior Proposal) and (2) unless either (A) on or before the expiration of the five Business Day period following the actual receipt by Parent of any Notice of Superior Proposal, Parent does not make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal (a “Matching Agreement”) in response to such Superior Proposal or (B) following receipt of a Matching Agreement within the five Business Day period, the Company Board (or any duly constituted committee thereof) concludes in good faith, after consultation with the Company’s outside legal advisors and after taking into consideration the Matching Agreement, that the Superior Proposal to which the Notice of Superior Proposal relates continues to be a Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Convergys Corp), Merger Agreement (Intervoice Inc)
No Solicitation. Neither (a) From the Company nor any date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its Subsidiaries or affiliates shall (and terms, the Company shall use its best efforts to cause its officersnot, directors, employees, representatives and agents, including, but not limited nor shall it permit any of the Company Subsidiaries to, nor shall it authorize or permit any officer, director, employee, investment bankersbanker, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person attorney or other entity advisor or group (other than Mergercorepresentative of, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company Subsidiaries to (an "Acquisition i) solicit, initiate, or knowingly encourage the submission of, any Company Takeover Proposal (as hereinafter defined), (ii) approve or recommend any Company Takeover Proposal"). The Company will immediately cease , enter into any existing activitiesagreement, discussions agreement-in-principle or negotiations with any parties conducted heretofore letter of intent with respect to or accept any Company Takeover Proposal (or resolve to or publicly propose to do any of the foregoing. Notwithstanding the foregoing), the Company may or (iii) participate or engage in any discussions or negotiations regarding, or furnish information concerning its business, properties or assets to any corporationPerson any information with respect to, partnershipor knowingly take any action to facilitate any inquiries or the making of any proposal that constitutes, person or other entity or group pursuant would reasonably be expected to appropriate confidentiality agreementslead to, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal any Company Takeover Proposal; provided, however, that (x) if such entity nothing contained in subclauses (i) or group has on an unsolicited basis submitted (ii) above shall prohibit the Company or its Board of Directors from disclosing to the Company’s stockholders a bona fide written proposal 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 from making any similar disclosure, in either case to the extent required by applicable law, provided that the Board of Directors of the Company relating to shall not recommend that the stockholders of the Company tender their Company Common Stock in connection with any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if tender or exchange offer unless the Board of Directors of the Company determines, only determines in good faith (after receipt receiving the advice of advice from independent legal counsel to its financial adviser) that such Company Takeover Proposal is a Company Superior Proposal; (y) if (under circumstances in which the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause the Board has complied with all of Directors to violate its fiduciary duties to the Company's shareholders obligations under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.this
Appears in 2 contracts
Sources: Merger Agreement (Arena Resources Inc), Merger Agreement (Sandridge Energy Inc)
No Solicitation. Neither (a) During the period beginning on the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.1, the Company agrees that (i) the Company and the Company Subsidiaries shall not, and neither the Company nor any of its the Company Subsidiaries shall authorize or affiliates shall permit any of their respective Representatives to, initiate, solicit or knowingly facilitate or encourage (including by way of furnishing non-public information) the making of any proposal or offer that constitutes, or is reasonably expected to lead to, an Alternative Proposal from any Person or group of Persons or engage in any substantive discussions or negotiations concerning, or provide any non-public information or knowingly assist, participate in, facilitate or encourage an effort by any third party with respect to, an Alternative Proposal, and (ii) the Company and the Company Subsidiaries shall not enter into any agreement with respect to any Alternative Proposal (other than an Acceptable Confidentiality Agreement) and shall cease, and instruct their respective Representatives to cease, any existing solicitation, substantive discussions or negotiations by or on behalf of the Company with any Person(s) conducted theretofore with respect to any Alternative Proposal and shall use its best commercially reasonable efforts to cause any such Person (or its officersagents or advisors) in possession of non-public information in respect of the Company or the Company Subsidiaries that was furnished by or on behalf of the Company and the Company Subsidiaries to return or destroy all such information.
(b) Notwithstanding the restrictions set forth in Section 6.2(a), directorsthe Company (directly or through its Representatives) may:
(i) until the earlier to occur of the Acceptance Time and the receipt of the Company Stockholder Approvals, employeesengage in substantive discussions or negotiations with a Person or group of Persons that makes an unsolicited bona fide Alternative Proposal made after the date hereof that did not result from the Company breaching its obligations under this Section 6.2 and may furnish to such Person(s) and its/their Representatives information concerning, representatives and agents, including, but not limited may afford such Person(s) and its/their Representatives access to, investment bankersthe Company and the Company Subsidiaries and their businesses, attorneys properties, assets, books and accountantsrecords, not toif (x) the Company Board determines in good faith (after consultation with the Company’s financial advisor and outside counsel), directly such Alternative Proposal constitutes, or indirectlyis reasonably likely to lead to, encouragea Superior Proposal and (y) prior to furnishing such information or access to, solicitor entering into substantive discussions (except as to the existence of this Section 6.2 or to ask such Person(s) to clarify the terms and conditions of such Alternative Proposal) or negotiations with, participate in such Person(s), (A) the Company receives from such Person(s) an executed Acceptable Confidentiality Agreement and (B) the Company notifies Parent to the effect that it intends to furnish information or initiate access to, or intends to enter into substantive discussions or negotiations with, such Person(s);
(ii) comply with Rules 14e-2 and 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to a tender or provide exchange offer;
(iii) make “stop-look-and-listen” communications with respect to an Alternative Proposal of the nature contemplated by Rule 14d-9 under the Exchange Act; and
(iv) make any information toother appropriate or required disclosure to the Company’s stockholders and take any other action required in connection with any action permitted by this Section 6.2(b) if the Company Board determines in good faith (after consultation with the Company’s outside counsel) that the failure to make such disclosure or take such other action would be inconsistent with applicable Law; provided, however, that the Company shall promptly notify Parent (within no more than 24 hours) of the communication or receipt of any Alternative Proposal, any corporationrequest that could reasonably be expected to be related to an Alternative Proposal, partnershipindicating, person in connection with such notice, the identity of the Person making such Alternative Proposal or other entity request and the material terms and conditions thereof. The Company shall keep Parent promptly (within no more than 24 hours) and reasonably informed of any material developments in the status and terms of any such Alternative Proposal or group request (other than Mergercoincluding whether such Alternative Proposal or request has been withdrawn or rejected and any material change to the terms thereof and shall provide Parent with copies of any written information or materials that it provides to the Person making the request therefor that have not previously been provided to Parent).
(c) The Company Board may not (i) (A) withdraw or modify, in a manner adverse to Parent, the recommendation by the Company Board of the Offer, the Merger or this Agreement (except as set forth in clause (y) of the proviso in Section 2.10(a)(ii) or as set forth below in this Section 6.2(c)) or (B) approve or recommend to the stockholders of the Company an Alternative Proposal (any of its affiliates action in this clause (i) being referred to as an “Adverse Recommendation Change”) or representatives(ii) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving cause the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease Subsidiaries to enter into any existing activitiesletter of intent, discussions agreement in principle, acquisition agreement or negotiations with any parties conducted heretofore with respect other similar agreement related to any of the foregoingAlternative Proposal (other than an Acceptable Confidentiality Agreement). Notwithstanding the foregoing, at any time prior to the earlier to occur of the Acceptance Time and the receipt of the Company may furnish information concerning its business, properties or assets to any 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 Stockholder Approvals (x) the Company Board may effect an Adverse Recommendation Change other than in connection with an Alternative Proposal if the Company Board (after consultation with the Company’s financial advisor and outside counsel) determines in good faith that the failure to take such entity or group has on an unsolicited basis submitted a bona fide written proposal action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law or (y) in response to an Alternative Proposal, if the Company Board (after consultation with the Company’s financial advisor and outside counsel) determines in good faith that any Alternative Proposal constitutes a Superior Proposal, the Company Board may:
(i) withdraw or modify its approval or recommendation of Directors the Offer, the Merger and this Agreement;
(ii) approve or recommend such Superior Proposal;
(iii) cause the Company or any of the Company Subsidiaries to enter into a binding written agreement with respect to such Superior Proposal (a “Superior Proposal Agreement”); or
(iv) terminate this Agreement in accordance with Section 8.1(c); provided, however, that (A) prior to taking any action pursuant to clause (i), (ii), (iii) or (iv) of this Section 6.2(c), the Company shall (x) give Parent at least five (5) Business Days prior written notice (the “Notice Period”) thereof, which notice shall state that the Company has received a Superior Proposal, include a copy of all relevant documents relating to the Superior Proposal and a written summary of the material terms and conditions of the Superior Proposal not made in writing and the identity of the Person or “group” making the Superior Proposal, which notice need only be given once with respect to any Superior Proposal, unless such Superior Proposal is modified in any material respect (which includes any revision in price whatsoever) in which case a new Notice Period will begin (it being understood that there may be multiple extensions) and (y) promptly provide Parent with a list of any nonpublic information concerning the business of the Company and the Company Subsidiaries, and the present or future financial condition or results of operations thereof, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information, (B) during the Notice Period, the Company shall have negotiated with Parent and its Representatives in good faith with respect to any adjustments to the terms and conditions of this Agreement as would permit the Company Board not to make an Adverse Recommendation Change and (C) following the Notice Period the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) after taking into account any such transaction modifications, changes or revisions to the terms of this Agreement proposed by Parent (taking into account, among other things, (I) the terms of such offer and (II) such legal, financial, regulatory, timing, financing, conditionality (i.e. closing conditions) and other aspects of such offer which the Company Board of Directors determines deems relevant), that (based upon x) failure to effect the advice of independent investment bankers for Adverse Recommendation Change action still would be inconsistent with the directors’ fiduciary duties to the Company) represents a superior transaction to the Merger for the shareholders of the Company, ’s stockholders under applicable Law and (y) if the Board intended Adverse Recommendation Change is the result of Directors of a Superior Proposal, the Company determines, only after receipt of advice from independent legal counsel Superior Proposal would continue to the Company and firm, that the failure constitute a Superior Proposal even if such changes were 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionbe given effect.
Appears in 2 contracts
Sources: Merger Agreement (EQT Corp), Agreement and Plan of Merger (Trans Energy Inc)
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (a) Seller agrees that it will not, and the Company shall use its best efforts to will cause its officerscontrolled Affiliates to not, directors, employees, representatives from the date of this Agreement and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)for a period of two years following the Closing Date (the “Non-Solicitation Period”) personally or through others, directly or indirectly, encourage, solicitinduce, participate attempt to induce, solicit or attempt to solicit (on their own behalf or on behalf of any other Person) any Transferred Employee or any employee of Buyer or any Subsidiary of Buyer with whom Seller or its Representatives has had significant contact in connection with or initiate discussions as a result of the transactions contemplated by this Agreement or negotiations withthe Ancillary Agreements (collectively, the “Restricted Employees”) to leave his or provide her employment with Buyer or its Affiliates; provided, that no member of the Seller Group shall be restricted from (i) making a general solicitation that is not targeted specifically to any information to, any corporation, partnership, person or other entity Restricted Employee or group of Restricted Employees, (ii) responding to any Restricted Employee who contacts it at his or her own initiative without the prior direct or indirect encouragement or solicitation by or on behalf of any member of the Seller Group (other than Mergercoas permitted by clause (i) or (iii) of this proviso), (iii) hiring persons (x) who are referred by search firms or employment agencies or similar entities so long as such entities have not been instructed by or on behalf of any member of the Seller Group to solicit any Restricted Employee or (y) to whom any member of the Seller Group may respond pursuant to clause (i) or (ii). Any violation of this Section 5.9(a) by any member of the Seller Group shall be deemed a violation of Seller. The parties agree that if an employee of the Seller Group solicits a Restricted Employee without permission or authority from an executive officer of the Seller Group or member of the human resources department of the Seller Group, then such activity shall not be a violation of this Section 5.9(a) so long as the Seller Group terminates such solicitation activity promptly, and in no event more than 24 hours, after an executive officer or member of the human resources group of the Seller Group becomes aware of such activity. Buyer agrees to use commercially reasonable efforts to give notice to Seller promptly if it becomes aware of any solicitation activity it believes may breach this Section 5.9(a), provided, that failure to give such notice shall not relieve any member of the Seller Group of any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"obligations under this Section 5.9(a). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect restrictions set forth in this Section 5.9(a) shall not apply to any third Person or any of such third Person’s current or future Affiliates that acquires, via a merger or business combination, any member of the foregoing. Notwithstanding Seller Group; provided, for the foregoingavoidance of doubt, such restrictions shall continue to apply to any acquired member of the Seller Group (or, if applicable, the Company may furnish information concerning surviving entity of a merger or business combination involving any member of the Seller Group) and shall apply in the event that a member of the Seller Group requested, directed or influenced the solicitation or it was made by the third Person on behalf of or at the direction of a member of the Seller Group. In the event that this Agreement is terminated in accordance with its businessterms prior to the Closing, properties this Section 5.9(a) shall be binding upon Seller only for the period from the date hereof until the first anniversary of the date of termination of this Agreement.
(b) Buyer agrees that it will not, and will cause its controlled Affiliates to not, from the date of this Agreement until the end of the Non-Solicitation Period personally or assets through others, encourage, induce, attempt to induce, solicit or attempt to solicit (on their own behalf or on behalf of any other Person) any employee of any member of the Seller Group (other than the Business Employees) (a “Seller Employee”) to leave his or her employment with such member of the Seller Group or, during the term of the Austin Office Lease, (to the extent such covenant by Buyer is permitted by applicable law) hire any Seller Employee whose principal place of work is the facility covered by the Austin Office Lease for employment by Buyer or its Affiliates at a work location in Texas; provided, that none of Buyer or its Affiliates shall be restricted from (i) making a general solicitation that is not targeted specifically to any corporation, partnership, person or other entity Seller Employee or group pursuant of Seller Employees, (ii) responding to appropriate confidentiality agreementsany Seller Employee who contacts it at his or her own initiative without the prior direct or indirect encouragement or solicitation by Buyer or its Affiliates (other than as permitted by clause (i) or (iii) of this proviso), and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (iii) hiring persons (x) if who are referred by search firms or employment agencies or similar entities so long as such entity entities have not been instructed by Buyer or group has on an unsolicited basis submitted a bona fide written proposal any of its Affiliates to the Board of Directors of the Company relating to solicit any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and Seller Employee or (y) to whom Buyer or its Affiliates may respond pursuant to clause (i) or (ii). Any violation of this Section 5.9(b) by any Affiliate of Buyer shall be deemed a violation of Buyer. The parties agree that if the Board an employee of Directors Buyer or its Affiliates solicits a Seller Employee without permission or authority from an executive officer of Buyer or member of the Company determineshuman resources department of Buyer, only then such activity shall not be a violation of this Section 5.9(b) so long as Buyer terminates such solicitation activity promptly, and in no event more than 24 hours, after receipt an executive officer or member of advice from independent legal counsel the human resources group of Buyer becomes aware of such activity. Seller agrees to use commercially reasonable efforts to give notice to Buyer promptly if it becomes aware of any solicitation activity it believes may breach this Section 5.9(b), provided, that failure to give such notice shall not relieve any Buyer Party of any of its obligations under this Section 5.9(b). The restrictions set forth in this Section 5.9(b) shall not apply to any third Person or any of such third Person’s current or future Affiliates that acquires, via a merger or business combination, any member of the Buyer Group; provided, for the avoidance of doubt, such restrictions shall continue to apply to any acquired member of the Buyer Group (or, if applicable, the surviving entity of a merger or business combination involving any member of the Buyer Group) and shall apply in the event that a member of the Buyer Group requested, directed or influenced the solicitation or it was made by the third Person on behalf of or at the direction of a member of the Buyer Group. In the event that this Agreement is terminated in accordance with its terms prior to the Company and firmClosing, that this Section 5.9(b) shall be binding upon Buyer only for the failure to provide such information or access or to engage in such discussions or negotiations would cause period from the Board of Directors to violate its fiduciary duties to date hereof until the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity first anniversary of the party making such proposal or inquiry which it may receive in respect date of any such transactiontermination of this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Silicon Laboratories Inc.), Asset Purchase Agreement (Skyworks Solutions, Inc.)
No Solicitation. Neither (a) None of IHI and its Subsidiaries, or T-3 and its Subsidiaries will (nor will they permit any of their respective Affiliates, officers, directors, representatives, or agents to), prior to the Company nor earlier of the Closing Date or the termination of this Agreement pursuant to Section 8.1, directly or indirectly, (i) solicit, initiate or encourage the submission of any proposal for a Sale Transaction, (ii) enter into any agreement with respect to any Sale Transaction or give any approval with respect to any Sale Transaction, or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Sale Transaction or any proposal for a Sale Transaction. Notwithstanding the preceding sentence, if at any time the Board of Directors of IHI or T-3 determines in good faith, (i) based on the advice of outside counsel, that it is advisable to do so in order to comply with its fiduciary duties to its stockholders under Applicable Law and (ii) after consultation with its financial advisors, that the Sales Transaction, if completed, would result in a transaction superior to the transaction contemplated by this Agreement, taking into account, among other things, the long term interests of IHI or T-3, as applicable, and their stockholders (a "Superior Proposal"), IHI or T-3 (and their respective officers, directors, representatives or agents) may in response to a written proposal for a Sale Transaction not solicited on or after the date hereof, subject to compliance with Section 6.13(c), (A) furnish information with respect to itself or a Subsidiary pursuant to a customary confidentiality agreement to any Person making such proposal, and (B) participate in negotiations regarding such proposal. Without limiting the foregoing, it is understood that any violations of the restrictions set forth in this Section 6.13(a) by any of a party's officers, directors, representatives, agents, Affiliates or Subsidiaries, whether or not such Person is purporting to act on behalf of such party or any of its Subsidiaries or affiliates otherwise, shall be deemed to be a breach of this Section 6.13(a) by such party.
(b) Neither of the Boards of Directors of IHI or T-3 shall (and i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, approval (including, but not limited towithout limitation, investment bankers, attorneys and accountants, not to), directly the Board of Directors' resolution providing for such approval) of this Agreement or indirectly, encourage, solicit, participate in the transactions contemplated hereby or initiate discussions (ii) approve or negotiations withrecommend, or provide any information topropose to approve or recommend, any corporationSale Transaction, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving except in the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to event the Board of Directors of the Company relating to any such transaction which the Board of Directors a party determines in good faith, (x) based upon on the advice of independent investment bankers for the Company) represents a superior transaction outside counsel, that it is advisable to the Merger for the shareholders of the Company, do so in order to comply with its fiduciary duties to its stockholders under Applicable Law and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firmconsultation with its financial advisors, that the failure Sale Transaction is a Superior Proposal, and then only at or after the termination of this Agreement pursuant to provide such Section 8.1(f) or 8.1(g).
(c) In addition to the obligations set forth in subsections (a) and (b) of this Section 6.13, each party promptly shall advise the others orally and in writing of any request for 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposalproposed Sale Transaction or any inquiry with respect to or which could reasonably be expected to lead to any proposed Sale Transaction, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party Person making any such proposal request, proposed Sale Transaction or inquiry which it may receive in respect and the terms and conditions thereof. Each party will keep the others fully informed of the status and details (including amendments or proposed amendments) of any such transactionrequest, proposed Sale Transaction or inquiry, and each party shall keep confidential such information provided to it by another party pursuant to this Section 6.13(c), subject to any judicial or other legal order, directions or obligations to disclose such information.
(d) Nothing contained in this Section 6.13 shall prohibit IHI from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (T-3 Energy Services Inc), Merger Agreement (Industrial Holdings Inc)
No Solicitation. Neither the Company (a) None of Rodeo, Inc., Seller, Parent nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives and agents, includingaffiliates (including the Company), but not limited toaccountants, counsel, investment bankers, attorneys and accountantsfinancial advisors or other representatives shall, not to), (i) directly or indirectly, initiate, solicit or encourage, solicitor take any action to facilitate the making of, participate any Competing Proposal (as defined below), or (ii) directly or indirectly engage in or initiate any discussions or negotiations with, or provide any information or data to, or afford any corporationaccess to the properties, partnership, person books or other entity or group (other than Mergerco, any records of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any SubsidiaryCompany Subsidiary to, division or operating otherwise assist, facilitate or principal business unit encourage, any person relating to any Competing Proposal; provided, however, that at any time Parent, Rodeo, Inc. and Seller may, in response to a Superior Proposal (as defined below) which was not solicited by them and which did not otherwise result from a breach of this Section 5.11(a), and subject to providing prior written notice of their decision to take such action to Buyer (the "NOTICE"), following delivery of the Company Notice (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore x) furnish information with respect to the Company, or the Company Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Superior Proposal. Parent, Rodeo, Inc. and Seller shall keep Buyer apprised of the foregoingany such discussions and negotiations promptly after they occur.
(b) Except as set forth below, neither Rodeo, Inc. nor Seller shall enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement (other than a confidentiality agreement in connection with a Superior Proposal which is entered into by Rodeo, Inc. and Seller in accordance with Section 5.11(a)) relating to any Competing Proposal (each, an "ACQUISITION AGREEMENT"). Notwithstanding the foregoing, in response to a Superior Proposal which was not solicited by any of Rodeo, Inc., Seller or Parent nor any of their Representatives, and which did not otherwise result from a breach of Section 5.11(a), Parent, Rodeo, Inc. and Seller may, subject to the Company may furnish information concerning its businessimmediately following sentence, properties or assets to any corporation, partnership, person or other entity or group terminate this Agreement pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal subject to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of Section 8.01(f) and, concurrently with such termination, enter into an Acquisition Agreement with respect to a Superior Proposal. The foregoing actions set forth in this Section 5.01(b) (including terminating this Agreement pursuant to Section 8.01(f)) may be taken by Parent, Rodeo, Inc. and Seller only if they have delivered to Buyer prior to the 30th day following the date hereof written notice of the intent of Parent, Rodeo, Inc. and Seller to take such action, together with a copy of the related Acquisition Agreement and a description of any terms of the Superior Proposal not contained therein. None of Parent, Rodeo, Inc. or Seller shall terminate this Agreement pursuant to Section 8.01(f) prior to the fifth business day following such notice. If during such five business day period Buyer informs Parent that it may make an alternative proposal, discussion, negotiation or inquiry (Parent shall establish a reasonable and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) customary bidding procedure pursuant to which Buyer and the identity person making the Superior Proposal shall have the opportunity to make their respective bids to Parent, Rodeo, Inc. and Seller. Parent, Rodeo, Inc. and Seller shall accept Buyer's offer unless Parent shall have determined that the competing bid is more favorable from a financial point of view as compared to Buyer's bid, taking into account the party making such proposal or inquiry which it may receive factors discussed in respect the definition of any such transactiona Superior Proposal.
Appears in 2 contracts
Sources: Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources Inc)
No Solicitation. Neither (a) Stockholder covenants and agrees that, prior to the Company Expiration Date, Stockholder shall not, nor shall it authorize or permit, as applicable, any of its Subsidiaries subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its or their directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, not to)other advisors and representatives, collectively, “Representatives”) to directly or indirectly, encourage, :
(i) solicit, participate in initiate, encourage or initiate discussions facilitate any inquiries or negotiations withthe making of any proposal or offer that constitutes, or provide any information could reasonably be expected to lead to, any corporationAcquisition Proposal (as defined below), partnership, person including without limitation amending or other entity granting any waiver or group (other than Mergerco, release under any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities standstill or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore agreement with respect to any Company Common Stock; or
(ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to any Acquisition Proposal Notwithstanding the foregoing and subsection (c) below, to the extent Stockholder or any Representative of Stockholder is a director of the foregoing. Notwithstanding the foregoingCompany, Stockholder may take, and Stockholder may permit such Representative to take, such actions in his or her capacity as director of the Company may furnish information concerning its business, properties or assets as are expressly permitted to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to be taken by the Board of Directors of the Company relating with respect to any such transaction which an Acquisition Proposal pursuant to (A) Section 6.1(a) of the Board Merger Agreement in connection with a bona fide, unsolicited Acquisition Proposal made or received after the date of Directors determines this Agreement, (based upon B) Section 6.1(b) of the advice Merger Agreement and (C) Section 6.1(d) of independent investment bankers for the Company) represents a superior transaction Merger Agreement, in each case subject to the conditions and limitations set forth in the Merger for Agreement and in the shareholders case of (A) and (B), as long as such actions do not follow a breach by Stockholder or such Representative of this Section 7 or a breach by the Company of Section 6.1 of the Company, and Merger Agreement.
(yb) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company Stockholder shall immediately notify the Buyer orally, with written confirmation to follow promptly (and in any event within 24 48 hours) communicate ), of any Acquisition Proposal or any request for nonpublic information in connection with, or that would reasonably be expected to Mergerco lead to, any Acquisition Proposal and of any material modifications to any Acquisition Proposal, received by Stockholder, such notice to include all written materials delivered to Stockholder by the person making such inquiry or Acquisition Proposal and in any case the identity of such person and a description of the terms of such Acquisition Proposal.
(c) Stockholder shall, and shall cause its Representatives to, cease immediately all discussions and negotiations regarding any proposalproposal that constitutes, discussionor could reasonably be expected to lead to, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionan Acquisition Proposal.
Appears in 2 contracts
Sources: Voting Agreement (Infospace Inc), Voting Agreement (Epresence Inc)
No Solicitation. Neither (a) From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Company and its subsidiaries will not, nor will they authorize or permit any of its Subsidiaries their respective officers or directors or any investment banker, attorney or other advisor or representative retained by any of them to, nor will they authorize any of their respective employees or affiliates shall (and the Company shall use its best efforts to, nor will they fail to take reasonable measures to cause their respective employees not to, directly or indirectly (i) solicit or initiate or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations regarding, or knowingly furnish to any person any information with respect to, or knowingly take any other action that would reasonably be expected to lead to, any Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal without complying with Section 5.2(c) or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment providing for any Acquisition Transaction (as defined below); provided, however, that this Agreement shall not prohibit Company or any of its officers, directors, affiliates, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountantsor other advisors or representatives from (A) at any time prior to the adoption of this Agreement by Company's stockholders, not furnishing information regarding Company to), directly or indirectlyentering into a confidentiality agreement with, encourage, solicit, participate in or initiate entering into discussions or negotiations with, or provide entering into a definitive acquisition agreement with any person or group in response to a Superior Offer submitted by such person or group (and not withdrawn) if (1) neither Company nor any representative of Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 5.4 prior to and in connection with such Acquisition Proposal, (2) the Board of Directors of Company concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of Company to comply with its fiduciary obligations to Company's stockholders under applicable law, (3) (x) at least forty-eight (48) hours prior to furnishing any such information to, any corporationentering into a confidentiality agreement with or entering into discussions or negotiations with, partnership, such person or other entity group, Company gives Parent written notice of the identity of such person or group and of Company's intention to take such action and (other than Mergercoy) Company receives from such person or group an executed agreement with confidentiality provisions at least as restrictive as the Confidentiality Agreement, and (4) contemporaneously with furnishing any such information to such person or group, Company furnishes such information to Parent (to the extent such information has not been previously furnished by Company to Parent) or (B) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or furnishing a copy or excerpts of its affiliates or representatives) concerning any mergerthis Agreement (excluding, tender offerhowever, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or Schedule and the Parent Schedule) to any Subsidiary, division or operating or principal business unit of the person. Company (an "Acquisition Proposal"). The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding In addition to the foregoing, the Company may furnish information concerning its business, properties shall (i) provide Parent with at least twenty-four (24) hours prior notice (or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal lesser prior notice as provided to the members of Company's Board of Directors) of any meeting of Company's Board of Directors of the Company relating to any such transaction at which the Company's Board of Directors determines is reasonably expected to consider a Superior Offer and (based upon the advice of independent investment bankers for the Companyii) represents a superior transaction provide Parent with at least two (2) business days prior written notice (or such lesser prior notice as provided to the Merger for the shareholders members of the Company, and (y's Board of Directors) if the of a meeting of Company's Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause the at which Company's Board of Directors is reasonably expected to violate recommend a Superior Offer to its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms stockholders and together with such notice a copy of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with definitive documentation relating to such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionSuperior Offer.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (PMC Sierra Inc), Agreement and Plan of Reorganization (Quantum Effect Devices Inc)
No Solicitation. Neither the Company nor any (a) Each of its Subsidiaries or affiliates shall (Parent and the Company shall and shall use its reasonable best efforts to cause its Affiliates and each of their respective officers, directors, employees, representatives and agents, including, but not limited to, investment bankersfinancial advisors, attorneys and accountantsother advisors, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will representatives and agents to immediately cease any existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Takeover Proposal (as defined below). Each of Parent and the Company shall not, nor shall it authorize or permit any of its Affiliates to, nor shall it authorize or permit any officer, director or employee of or any financial advisor, attorney or other advisor, representative or agent of it or any of its Affiliates, to (i) directly or indirectly solicit, facilitate, initiate or encourage the making or submission of, any Takeover Proposal (including without limitation, with respect to the Company, the taking of any action which would make Section 912 of the foregoing. Notwithstanding the foregoingBCL inapplicable to a Takeover Proposal), the Company may furnish information concerning its business(ii) enter into any agreement, properties arrangement or assets understanding with respect to any corporationTakeover Proposal or enter into any agreement, partnershiparrangement or understanding requiring it to abandon, person terminate or fail to consummate the Merger or any other entity transaction contemplated by this Agreement, (iii) initiate or group pursuant participate in any way in any discussions or negotiations regarding, or furnish or disclose to appropriate confidentiality agreementsany Person (other than a party to this Agreement) any information with respect to, or take any other action to facilitate or in furtherance of any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal or (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of such party's equity securities; provided, that prior to the Effective Time, in response to an unsolicited Takeover Proposal that did not result from the breach of this Section 6.7 and following delivery to the other party of notice of the Takeover Proposal in compliance with its obligations under Section 6.7(d) hereof, such party may negotiate and participate in discussions and or negotiations with such entity or group concerning an Acquisition Proposal furnish information (x) if such entity or group has on an unsolicited basis submitted pursuant to a confidentiality agreement with customary terms to any third party which makes a bona fide written proposal to the Takeover Proposal if (A) a majority of its Board of Directors reasonably determines in good faith (after consultation with an independent, nationally recognized investment bank) that taking such action could be reasonably likely to lead to the delivery to it of the Company relating to any such transaction which the a Superior Proposal and (B) a majority of its Board of Directors determines in good faith (based upon after receiving the advice of independent investment bankers for the Companyoutside legal counsel) represents a superior transaction that it is necessary to the Merger for the shareholders of the Company, and (ytake such actions(s) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel in order to the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause the Board of Directors to violate comply with its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco Without limiting the terms foregoing, each of any proposal, discussion, negotiation or inquiry (Parent and will disclose any written materials received by the Company agrees that any violation of the restrictions set forth in this Section 6.7(a) by any of such party's, or any of its Subsidiaries', officers, employees, Affiliates or directors or any advisor, representative, consultant or agent retained by such party or any of its Subsidiaries or any of their Affiliates in connection with the transactions contemplated hereby, whether or not such proposalPerson is purporting to act on behalf of such party or any of its Subsidiaries, discussion, negotiation or inquiryshall constitute a breach of this Section 6.7(a) and the identity of the party making by such proposal or inquiry which it may receive in respect of any such transactionparty.
Appears in 2 contracts
Sources: Merger Agreement (Upm Kymmene Corp), Merger Agreement (Champion International Corp)
No Solicitation. Neither The Company agrees that, during the term of this Agreement, it will not negotiate with any person other than Parent with respect to the acquisition of the Company nor or its Subsidiaries and it will not, and will not permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, affiliates, agents or representatives and agents, (including, but not limited towithout limitation, investment bankers, attorneys and accountants) to (a) initiate contact with, not to)(b) make, solicit or encourage any inquiries or proposals from, (c) enter into, or participate in, any discussions or negotiations with, (d) disclose, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information tonot customarily disclosed concerning the business and properties of the Company or its Subsidiaries to or (e) afford any access to the Company's or its Subsidiaries properties, books and records to any corporation, partnership, person or other entity or group (other than MergercoParent, Sub or their respective directors, officers, employees, agents and representatives) in connection with any possible proposal relating to (i) the disposition of its affiliates respective businesses or representativesall or substantially all of its assets (except for disposition of assets in the ordinary course of business consistent with past practice), (ii) concerning any merger, tender offer, exchange offer, sale the acquisition of assets, sale of shares of capital stock equity or debt securities of the Company or its Subsidiaries (except in connection with the exercise of options, as permitted in Section 5.3(a)) or (iii) the merger, share exchange or business combination, or similar transactions acquisition transaction of or involving the Company or its Subsidiaries with any Subsidiary, division person other than Parent (each or operating or principal business unit any combination of the foregoing a "Company (an "Acquisition ProposalCompeting Transaction"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, ; provided that the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity furnish information (subject to a confidentiality agreement in reasonably customary form) to, and negotiate or group has on an unsolicited basis submitted otherwise engage in discussions with, any party who delivers a bona fide written proposal to 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 the Merger or a Company Competing Transaction, or amend or withdraw such position, in compliance with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Company Competing Transaction. From and after the execution of this Agreement, the Company and each of its Subsidiaries will immediately notify Parent orally, and subsequently confirm in writing, all the relevant details relating to all inquiries and proposals which it may receive relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction matters. Subject to the Merger for foregoing, the shareholders of the CompanyCompany will not, and (y) if the Board will not permit any of Directors of the Company determinesits representatives or Subsidiaries to enter, only after receipt of advice from independent legal counsel to the Company and firmat any time, that the failure to provide such information into or access or to engage participate in such any discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The regarding, or accept, any proposal for a Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials Competing Transaction received by the Company in connection them from a third party or that a third party expresses a desire to communicate with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionthem.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Southern Mineral Corp), Merger Agreement (Amerac Energy Corp)
No Solicitation. Neither Except as expressly permitted by this Section 6.1, from the Company nor any date hereof until the Effective Time or, if earlier, the valid termination of its Subsidiaries or affiliates shall (and this Agreement in accordance with Section 8.1, the Company shall use its best efforts to not, shall cause its subsidiaries not to and shall direct its and their respective directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys attorneys, accountants and accountantsother advisors or representatives (collectively, “Representatives”) not to), directly or indirectly, encourage(i) initiate, solicit, propose, knowingly assist, knowingly encourage (including by way of furnishing information) or knowingly take any action to facilitate any inquiry, proposals or offers regarding, or the making of, any Acquisition Proposal, (ii) engage in, continue or otherwise participate in or initiate any discussions with or negotiations relating to, or furnish any non-public information to any Person in connection with, or provide any information to, any corporation, partnership, person or other entity or group Acquisition Proposal (other than Mergercoto state that the terms of this provision prohibit such discussions or negotiations), (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any of its affiliates Acquisition Proposal or representatives(iv) concerning negotiate, execute or enter into, any mergermerger agreement, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person acquisition agreement 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 similar definitive agreement for any Acquisition Proposal (x) if such entity other than an Acceptable Confidentiality Agreement executed in accordance with Section 6.1(b)(iii)); provided that it is understood and agreed that any determination or group has on an unsolicited basis submitted a bona fide written proposal to action by the Board of Directors of the Company relating expressly permitted under Section 6.1(b) or Section 6.1(c) shall not be deemed to any such transaction which be a breach or violation of this Section 6.1(a) and, in the Board case of Directors determines Section 6.1(b) (based upon the advice of independent investment bankers for the Companyother than clause (iv) represents thereof) shall not be deemed to give Parent a superior transaction right to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel terminate this Agreement pursuant to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionSection 8.1(e)(ii).
Appears in 2 contracts
Sources: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
No Solicitation. Neither the (a) The Company shall not, nor shall it permit or authorize any of its Subsidiaries or affiliates shall (and any officer, director, employee, accountant, counsel, financial advisor, agent or other representative of the Company shall use or any of its best efforts to cause its officersSubsidiaries (collectively, directors, employees, representatives and agents, including, but not limited the “Company Representatives”) to, investment bankers, attorneys and accountants, not to), directly or indirectly, (i) solicit, initiate, facilitate, respond to or encourage, solicitincluding by way of furnishing non-public information, any inquiries regarding or relating to, or the submission of, any Takeover Proposal, (ii) participate in or initiate any discussions or negotiations withnegotiations, furnish to any Person any information or data relating to the Company or its Subsidiaries, provide access to any of the properties, books, records or employees of the Company or its Subsidiaries or take any other action, in each such case regarding or to facilitate the making of any proposal that constitutes, or provide any information may reasonably be expected to lead to, any corporationTakeover Proposal, partnership(iii) enter into any letter of intent, person memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other entity similar agreement or group commitment with respect to any Takeover Proposal (an “Alternative Acquisition Agreement”) or agree to, approve, endorse or resolve to recommend or approve any Takeover Proposal, except in each case as otherwise specifically provided in Section 7.2(c), (iv) grant any waiver or release under any standstill or similar agreement by any Person who has made a Takeover Proposal, or (v) take any action (A) to render the Rights issued pursuant to the terms of the Company Rights Agreement inapplicable to a Takeover Proposal or the transactions contemplated thereby, exempt or exclude any Person from the definition of an Acquiring Person (as defined in the Company Rights Agreement) under the terms of the Company Rights Agreement or, other than as contemplated by this Agreement in connection with the Merger, allow the Rights to expire prior to their expiration date or (B) to exempt any Person from the restrictions on “business combinations” contained in Section 203 of Delaware Law or otherwise cause such restrictions not to apply; provided, however, that 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, including in order to comply with its fiduciary duties or (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 Third Party (other than Mergerco, any of its affiliates or the Company’s agents and representatives) concerning to withdraw or modify, its approval or recommendation of this Agreement or the transactions contemplated hereby, including the Merger, or approve or recommend, or propose to the public or any mergerThird Party (other than the Company’s agents and representatives) to approve or recommend any Takeover Proposal, tender offeror enter into any Alternative Acquisition Agreement. Upon execution of this Agreement, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiaryshall, division or operating or principal business unit of and it shall cause the Company (an "Acquisition Proposal"). The Company will Representatives and its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions discussions, solicitations or negotiations with any parties conducted heretofore with respect to any Takeover Proposal. Notwithstanding any of the foregoing. Notwithstanding foregoing restrictions appearing in this Section 7.2(a), nothing in this Agreement shall prevent the foregoingCompany 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 may furnish Voting Proposal at the Company Meeting, information concerning its business, properties or assets assets, or other information with respect to the Company or its Subsidiaries, which information is not of greater scope, area or detail than was provided to Parent, to any corporation, partnership, person or other entity Person or group pursuant to appropriate a confidentiality agreementsagreement with terms and conditions substantially similar to those of the Confidentiality Agreement, and may negotiate and participate in discussions and negotiations with such entity Person or group concerning an Acquisition Proposal (x) if such entity or group who has on an unsolicited basis submitted made a bona fide fide, written proposal 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 Board date of Directors this Agreement shall be considered a new Takeover Proposal made after the date of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Companythis Agreement) represents a superior transaction to the Merger for the shareholders and none of the Company, its Subsidiaries and their representatives has solicited, initiated, or knowingly facilitated or encouraged any Takeover Proposal, or otherwise directly or indirectly violated this Section 7.2 (other than immaterial breaches 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 such Takeover Proposal or its Affiliates; (x) such Person or group has submitted a Takeover Proposal that the Company Board has determined (after consulting with outside legal counsel) either (i) constitutes a Superior Proposal (as defined below) or (ii) is more favorable to the Company’s stockholders from a financial point of view than the Merger and is reasonably likely to lead to a Superior Proposal; and (y) if the Board of Directors of the Company determinesBoard determines in good faith, only after receipt of advice from independent legal counsel consultation with outside counsel, that such action is required to discharge the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause the Board of Directors to violate its Board’s fiduciary duties to the Company's shareholders ’s stockholders under applicable lawLaw. The Company shall immediately 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 24 hoursone (1) communicate to Mergerco Business Day) notify Parent telephonically and in writing of the terms existence of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company that is or could reasonably be expected to constitute a Takeover Proposal, and the Company will promptly communicate in connection with writing to Parent the terms and conditions of any such proposal, discussion, negotiation or inquiry) inquiry which it may receive and a copy thereof and the identity of the party Person making such proposal or inquiry which it may receive in respect the same. The Company shall inform Parent within 24 hours of any change to the material terms of any such transactionTakeover Proposal. Within 24 hours upon any determination by the Company Board that a Takeover Proposal constitutes a Superior Proposal, the Company shall deliver to Parent a written notice advising it 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 with a copy of the Superior Proposal.
(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 Company’s agents and representatives) to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, unless the Company Board shall have determined in good faith, after consultation with outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under Delaware Law or to otherwise comply with any other 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 representatives) to approve or recommend, any Takeover Proposal or (ii) enter into any Alternative Acquisition Agreement (other than a confidentiality agreement 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 Rights Agreement, and the Company may enter into an Alternative Acquisition Agreement with respect to a Superior 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 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 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 (Symbol Technologies Inc), Merger Agreement (Motorola Inc)
No Solicitation. Neither the (a) The Company nor any of its Subsidiaries or affiliates shall, and shall (and the Company shall use its best efforts to cause its subsidiaries, officers, directors, employees, representatives and agents, including, but not limited tocounsel, investment bankers, attorneys and financial advisers, accountants, not to)other representatives and agents (collectively, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representativesthe "Company Representatives") concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit to immediately as of the Company (an "Acquisition Proposal"). The Company will immediately date hereof cease any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to a Takeover Proposal (as defined below). The Company shall not, and shall not authorize or permit any Company Representative to, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal; (ii) participate in any discussions or negotiations regarding any Takeover Proposal; or (iii) enter into any agreement with respect to any of Takeover Proposal; provided, however, that, if at any time prior to the foregoing. Notwithstanding the foregoingEffective Time, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating determines in good faith, in consultation with its legal counsel, that it is necessary to do so in order to comply with its fiduciary duties, the Company may, in response to an unsolicited Takeover Proposal, and subject to compliance with Section 7.2(c), (x) furnish information with respect to the Company to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents person pursuant to a superior transaction to the Merger for the shareholders of the Company, confidentiality agreement and (y) if participate in negotiations regarding such Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any Company Representative shall be deemed to be a breach of this Section 7.2(a) by the Company.
(b) Neither the Board of Directors of the Company determinesnor any committee thereof shall: (i) withdraw or modify, only after receipt or propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of advice from independent legal counsel Directors or such committee of this Agreement or the Offer or the Merger; (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal; or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause Effective Time the Board of Directors of the Company determines in good faith, in consultation with its legal counsel as to violate legal matters, that it is necessary to do so in order to comply with its fiduciary duties duties, the Board of Directors of the Company may withdraw or modify its approval or recommendation of this Agreement, the Offer and the Merger, approve or recommend a Superior Proposal (as defined below) or cause the Company to enter into an agreement with respect to a Superior Proposal, but in each case only at a time that is after the fifth Business Day following Parent's receipt of written notice advising Parent that the Board of Directors of the Company has received a Superior Proposal.
(c) In addition to the Company's shareholders under applicable law. The obligations of the Company set forth in paragraphs (a) and (b) of this Section 7.2, the Company shall immediately promptly advise Parent orally of any request for information or of any Takeover Proposal (in any event within 24 hours) communicate to Mergerco including the terms of such Takeover Proposal). (d) "Takeover Proposal" means any proposalinquiry, discussionproposal or offer from any person relating to any: (A) merger, negotiation consolidation or inquiry similar transaction involving the Company, (and will disclose any written materials received B) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of assets of the Company or its subsidiaries outside the ordinary course of business representing 10% or more of the consolidated assets of the Company and its subsidiaries, (C) issue, 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 20% or more of the voting power of the Company or (D) transaction in connection 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 more than 20% of the -26- 31 outstanding Common Stock, in each case, other than the transactions with Parent contemplated by this Agreement. (e) "Superior Proposal" means any bona fide written offer for a Takeover Proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 20% of the outstanding Common Stock on a fully diluted basis or all or substantially all the assets of the Company and otherwise on terms which the Board of Directors of the Company determines in its good faith judgment in consultation with a financial advisor of nationally recognized reputation that the consideration offered pursuant to such proposal, discussion, negotiation or inquiry) Takeover Proposal is more favorable to the Shareholders than the Offer and the identity Merger from a financial point of the party making such proposal or inquiry which it may receive in respect of any such transaction.view. ARTICLE VIII
Appears in 2 contracts
Sources: Merger Agreement (Dravo Corp), Merger Agreement (Dravo Corp)
No Solicitation. Neither Company agrees that, during the Company nor term of this Agreement, it shall not, and shall not authorize or permit any of its Subsidiaries subsidiaries or affiliates shall (and the Company shall use any of its best efforts to cause or its subsidiaries' directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)agents or representatives, directly or indirectly, encourage, to: (i) solicit, participate initiate, encourage or facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or initiate the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving Company, or acquisition of 10% or more of the capital stock or any material portion of the assets (except as set forth in Section 5.3(d) to the Company Disclosure Schedule and except for acquisition of assets in the ordinary course of business consistent with past practice) of Company, or any combination of the foregoing ("Company Competing Transaction"); (ii) negotiate, explore or otherwise engage in discussions with any person (other than Parent, Subcorp or their respective directors, officers, A-22 28 employees, agents and representatives) with respect to any Company Competing Transaction; or (iii) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided, however, that nothing contained in this Section 5.3(d) shall prohibit the Board of Directors of Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to Company than the Confidentiality Agreement) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide written proposal for a Company Competing Transaction (an "Alternative Proposal"), if, and only to the extent that, (A) the Board of Directors of Company, based upon the written opinion of outside counsel (a copy of which shall be provided promptly to Parent), determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to shareholders imposed by law, (B) such Alternative Proposal is not conditioned on the receipt of financing, the Board of Directors has reasonably concluded in good faith that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Acquisition Proposal is more favorable to the Company's shareholders than the Merger, and the Board of Directors has received a written opinion from a nationally-recognized investment banking firm (a copy of which shall be provided promptly to Parent) to the effect that the consideration to be received by shareholders of Company in connection with such Alternative Proposal is superior, from a financial point of view, to the consideration to be received by them in the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or provide any entity, Company provides written notice to Parent to the effect that it is furnishing information to, any corporationor entering into negotiations with, partnershipsuch Person, person or other entity or group and (other than Mergerco, any of its affiliates or representativesD) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit keeps Parent informed of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore status and all material information with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties such discussions or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Companynegotiations, and (yii) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firmextent applicable, that complying with Rule 14e-2 promulgated under the failure Exchange Act with regard 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 shareholders under applicable lawan Alternative Proposal. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.e)
Appears in 2 contracts
Sources: Merger Agreement (Southdown Inc), Merger Agreement (Southdown Inc)
No Solicitation. Neither (a) The Company agrees that, prior to the Effective Time, it shall not, and shall not authorize or permit any Company nor Subsidiaries or any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)Subsidiaries' Representatives, directly or indirectly, encourage, to (i) solicit, participate in initiate or initiate discussions encourage any inquiries or negotiations with, the making of any offer or provide any information to, any corporation, partnership, person or other entity or group proposal with respect to (other than Mergerco, any of its affiliates or representativesx) concerning any merger, tender offerconsolidation, exchange offershare exchange, sale recapitalization, business combination or similar transaction, (y) any sale, lease, exchange, mortgage, transfer or other disposition, in a single transaction or series of assetsrelated transactions, of assets representing 15% or more of the assets of the Company and the Company Subsidiaries, taken as a whole, or (z) any sale of shares of capital stock representing, individually or debt securities in the aggregate, 10% or similar more of the voting power of the Company other than to the Company or a Company Subsidiary, including by way of a tender offer or exchange offer by any person (other than the Company or a Company Subsidiary) for shares of capital stock representing 5% or more of the voting power of the Company, other than the transactions involving contemplated by this Agreement (any of the foregoing inquiries, offers or proposals being referred to in this Agreement as a "TAKEOVER PROPOSAL"), (ii) negotiate or otherwise engage in substantive discussions with any person (other than the Parent or its Representatives) that has submitted or proposed to submit any Takeover Proposal, (iii) provide to any person any non-public information or data relating to the Company or any SubsidiaryCompany Subsidiary for the purpose of facilitating the making of any Takeover Proposal, division or operating (iv) agree to approve or principal business unit recommend any Takeover Proposal or otherwise enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided, however, that if the Board of Directors of the Company determines in good faith (an "Acquisition after consultation with the Company's independent legal counsel) that failure to do so would be inconsistent with its fiduciary duties to the Company's stockholders under applicable Laws, the Company may, in response to a Takeover Proposal", which, if consummated, would constitute a Superior Proposal, which proposal was not solicited by it and which did not otherwise result from a breach of this Section 5.7, and subject to providing prior written notice of its decision to take such action to the Parent and compliance with the other requirements of this Section 5.7, (A) furnish information with respect to the Company and the Company Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined in good faith by the Company after consultation with its independent legal counsel), (B) participate in discussions or negotiations regarding such Superior Proposal or (C) enter into a definitive agreement providing for the implementation of a Superior Proposal if the Company or the Board of Directors is simultaneously terminating this Agreement pursuant to Section 7.1(h).
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 5.7, the Company shall as promptly as is practicable advise the Parent orally and in writing of any request for information relating to any Takeover Proposal and the material terms and conditions of such request or Takeover Proposal and the identity of the person making such request or Takeover Proposal. The Company will keep the Parent informed of the status (including amendments or proposed amendments) of any such request or Takeover Proposal.
(c) Nothing contained in this Section 5.7 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 other disclosure to the Company's stockholders, that is required by applicable Law or by the Board of Directors' fiduciary duties.
(d) The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company or its Representatives with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding , and will promptly inform the foregoing, Representatives of the obligations undertaken in this Section 5.7.
(e) The Board of Directors of the Company may furnish information concerning will not withdraw or modify, or propose to withdraw or modify, in any manner adverse to the Parent, its businessapproval or recommendation of this Agreement or the Merger, properties except in connection with a Superior Proposal and then only upon or assets to any corporation, partnership, person or other entity or group after the termination of this Agreement pursuant to appropriate confidentiality agreementsSection 7.1(h) and payment to the Parent of the amounts referred to in Section 7.3(b); provided, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to however, that the Board of Directors of the Company relating may, at any time prior to the Effective Time, withdraw, modify or change any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) recommendation if the Board of Directors of the Company determines, only determines in good faith (after receipt of advice from independent legal counsel to consultation with the Company and firm, Company's counsel) that the failure to provide such information so withdraw, modify or access or to engage in such discussions or negotiations change its recommendation would cause the Board of Directors to violate be inconsistent with its fiduciary duties to the Company's shareholders stockholders under applicable law. The Laws.
(f) For purposes of this Agreement, "SUPERIOR PROPOSAL" means any bona fide written proposal made by a third party to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or similar transaction, for consideration to the Company's stockholders consisting of cash and/or securities, over 15% of the shares of the Company's capital stock then outstanding on terms which the Board of Directors of the Company shall immediately determines in their good faith judgment (after consultation with the Company's financial advisors and legal counsel), (i) would, if consummated, result in a transaction that is more favorable to the Company's stockholders (in any event within 24 hourstheir capacity as stockholders) communicate to Mergerco from a financial point of view than the terms transactions contemplated by this Agreement and (ii) is reasonably capable of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by being completed on the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionproposed terms.
Appears in 1 contract
No Solicitation. Neither Company will not, and will cause its subsidiaries and the officers, directors, employees or other agents of Company nor and its subsidiaries not to, directly or indirectly, (i) intentionally take any action to solicit, initiate or encourage any Takeover Proposal or (ii) engage in negotiations with, or disclose any nonpublic information relating to Company or any of it subsidiaries to, or afford access to the properties, books or records of Company or any of its Subsidiaries subsidiaries to any Person that has advised Company that it may be considering making, or affiliates shall (and the that has made, a Takeover Proposal. Company shall use its best efforts to cause not, and shall not permit any of its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person employees or other entity representatives to agree to or group (other than Mergerco, endorse any Takeover Proposal. Company will promptly notify Parent after receipt of any Takeover Proposal or any notice that any Person is considering making a Takeover Proposal or any request for nonpublic information relating to Company or any of its affiliates subsidiaries or representatives) concerning any mergerfor access to the properties, tender offer, exchange offer, sale books or records of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiaryof its subsidiaries by any person that has advised Company that it may be considering making, division or operating or principal business unit that has made, a Takeover Proposal and will keep Parent reasonably informed of the Company status and details (an "Acquisition including the Person making the Takeover Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, price and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (xmaterial terms) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionTakeover Proposal notice, request or any correspondence or communications related thereto and shall provide Parent with a true and complete copy of such Takeover Proposal notice or request or correspondence or communications related thereto, if it is in writing, or a written summary thereof, if it is not in writing.
Appears in 1 contract
Sources: Merger Agreement (Micrel Inc)
No Solicitation. Neither During the Pre-Closing Period, neither the Company nor any of its Subsidiaries or affiliates shall (shall, and the Company shall use its best efforts to cause its (and its Subsidiaries’) directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) not to), directly or indirectly, encourage, :
(i) solicit, participate in seek, facilitate, knowingly encourage or initiate discussions any inquiries or negotiations withmake or facilitate the making of any proposal or offer (including any proposal from or offer to the Company’s stockholders) with respect to, or provide any information that could reasonably be expected to lead to, any corporation, partnership, person Acquisition Proposal;
(ii) furnish or other entity or group (other than Mergerco, disclose any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving non-public information with respect to the Company or any Subsidiaryof its Subsidiaries to any Person regarding any Acquisition Proposal;
(iii) engage, division continue or operating otherwise participate in discussions or principal business unit negotiations (including solicitation of a revised Acquisition Proposal) with any Person or any of its Representatives regarding any Acquisition Proposal; or
(iv) except as set forth on Section 6.1(a)(iv) of the Company (an "Acquisition Proposal"). The Company will immediately cease Disclosure Schedule, terminate, waive or amend any provision of any existing activities, discussions standstill agreement to which the Company or negotiations with any parties conducted heretofore with respect to any Subsidiary is a party (all of which shall be enforced by the foregoingCompany and its Subsidiaries). Notwithstanding the foregoingforegoing or anything to the contrary set forth in this Agreement, subject to the Company’s compliance with this Section 6.1, the Company may furnish information concerning its businessmay, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal prior to the Board of Directors adoption of the Company relating Voting Proposal, to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers extent necessary for the Company) represents a superior transaction Company Board or the Special Committee to the Merger for the shareholders of the Companycomply with its fiduciary obligations under applicable Law, and (y) if the Board of Directors of as determined in good faith by the Company determinesBoard or the Special Committee (and after consultation with its outside legal counsel), only after receipt of advice from independent legal counsel to the furnish Company and firmrelated information to, that the failure to provide such information or access or to engage in such negotiations or discussions or negotiations would cause the Board of Directors with, any Person and/or its Representatives in response to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposala bona fide, discussion, negotiation or inquiry (and will disclose any unsolicited written materials Acquisition Proposal received by the Company in connection with such proposal, discussion, negotiation or inquiry) and after the identity date of this Agreement provided that all of the party following conditions are met:
(A) the Company Board or the Special Committee, as the case may be, must determine in good faith that such Acquisition Proposal is, or could reasonably be expected to result in, a Superior Proposal;
(B) such Acquisition Proposal must not have resulted from a material breach by the Company of this Section 6.1; and
(C) prior to furnishing any information with respect to the Company, the Person making such proposal or inquiry Acquisition Proposal must have executed a confidentiality agreement the terms of which it may receive are substantially similar to and no less favorable to the Company than those contained in respect of any such transactionthe Confidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement (Zomax Inc /Mn/)
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (and the a) The Company shall use its best efforts to cause not, and shall not permit or authorize its officers, directors, employees, affiliates, agents or other representatives and agents(including without limitation any investment banker, includingfinancial advisor, but not limited attorney or accountant retained by it) to 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 relating to, investment bankersor that may reasonably be expected to lead to, attorneys and accountants, not toany Alternative Transaction (as defined in Section 9.3(c)), directly or indirectlyenter into discussions (except as to the existence of these provisions) or negotiate with any person or entity in furtherance of such inquiries or to obtain an Alternative Transaction, encourageor agree to, solicitor endorse, participate any Alternative Transaction, or authorize or permit any of the officers, directors, employees or agents of the Company or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company to take any such action and the Company shall promptly notify Acquiror of all relevant terms of any such inquiries or proposals received by the Company or by any such officer, director, employee, agent, investment banker, financial advisor, attorney, accountant or other representative relating to any of such matters and if such inquiry or proposal is in writing, the Company shall promptly deliver or initiate cause to be delivered to Acquiror a copy of such inquiry or proposal and promptly update Acquiror as to any material changes with respect to such inquiry or proposal; provided, however, that nothing contained in this subsection (a) shall prohibit the board of directors of the Company and its officers, directors, employees, affiliates, agents or other representatives (including without limitation any investment banker, financial advisor, attorney or accountant retained by it) from (i) furnishing information to, entering into a confidentiality agreement with, or entering into discussions or negotiations with, any persons or provide any entity in connection with an unsolicited bona fide proposal in writing by such person or entity relating to an Alternative Transaction if, and only to the extent that (A) the board of directors of the Company determines in good faith, after receiving a written legal opinion from its outside legal counsel, that such action is necessary to comply with its fiduciary duties under Delaware law, (B) such action is in response to an unsolicited bona fide written proposal made by a third party relating to an Alternative Transaction on terms which the Company's board of directors in good faith believes to be more favorable to the Stockholders than the Merger and for which financing is committed (a "Superior Proposal"), and (C) ----------------- prior to furnishing such information to, any corporationor entering into discussions or negotiations with, partnership, such person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company provides written notice to Acquiror to the effect that it is furnishing information to, or any Subsidiaryentering into discussions or negotiations with, division such person or operating entity; (ii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Transaction; or principal business unit (iii) in the event of a Superior Proposal, to enter an agreement or understanding with respect to the Company Superior Proposal.
(an "Acquisition Proposal"). b) The Company will shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than Acquiror and Merger Sub) conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, The Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company may furnish information concerning is a party.
(c) The Company shall inform its businessofficers, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, directors and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors employees of the Company relating to and any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information banker or access other advisor or to engage in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received representative retained by the Company who are aware of, and require such person to agree to abide by, the restrictions described in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionthis Section 6.5.
Appears in 1 contract
Sources: Merger Agreement (Cybersource Corp)
No Solicitation. Neither (a) The Company and its affiliates (as such term is defined under Rule 12b-2 under the Company nor any Exchange Act) and each of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives and agents, including, but not limited to, investment bankersfinancial advisors, attorneys and accountantsother advisors, not to), directly or indirectly, encourage, solicit, participate in or initiate representatives and agents shall immediately cease any discussions or negotiations withwhich may be ongoing with third parties with respect to any Takeover Proposal (as defined below), or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, except in connection with the sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal")Database Business. The Company will immediately cease shall not, nor shall it authorize or permit any existing activitiesofficer, director or employee of or any financial advisor, attorney or other advisor, representative or agent of, the Company to, (i) solicit, initiate or encourage the submission of, any Takeover Proposal (as hereafter defined) (including, without limitation, the taking of any action which would make the Rights Agreement or Section 203 of the Delaware General Corporation inapplicable to a Takeover Proposal except as otherwise provided in this Agreement), or (ii) enter into any agreement with respect to any Takeover Proposal or enter into any arrangement, understanding or agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, however, that in response to an unsolicited Takeover Proposal and in compliance with its obligations under Section 4.2(c) hereof, the Company may participate in discussions or negotiations with any parties conducted heretofore or furnish information (pursuant to a confidentiality agreement with respect terms in the aggregate not materially more favorable to such third party than the terms of the Confidentiality Agreement) to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 third party which makes a Superior Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (yas defined below) if the Board of Directors believes it would be in the best interests of the Company determinesand its stockholders to do so. For purposes of this Agreement, only after receipt "Takeover Proposal" means (i) any inquiry, proposal or offer from any person or entity relating to any direct or indirect acquisition or purchase of advice from independent legal counsel to a substantial amount of assets of the Company or any of its Subsidiaries (other than the stock and firm, that assets described in the failure to provide such information Database Agreements) 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms over 20% of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by class of equity securities of the Company or any of its Subsidiaries (other than the stock and assets described in connection with such proposalthe Database Agreements), discussion, negotiation or inquiry(ii) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.any
Appears in 1 contract
Sources: Merger Agreement (Intelliquest Information Group Inc)
No Solicitation. Neither the Company nor (a) The Seller agrees and covenants that, except as authorized or permitted in this Section 6.5, it shall not, and shall not authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use any of its best efforts to cause or its Subsidiaries’ directors, officers, directors, employees, representatives and Affiliates, agents, including, but not limited to, investment bankers, attorneys and financial advisors, attorneys, accountants, not brokers, finders, consultants or representatives (collectively, “Agents”) to), directly or indirectly, encourageinvite, solicit, initiate or knowingly encourage or facilitate (including by way of furnishing or disclosing nonpublic information) any inquiries, proposals, discussions or negotiations or the making or implementation of any offer or proposal (including, without limitation, any proposal or offer to its stockholders) with respect to or that would reasonably be expected to lead to any Acquisition Proposal, or participate in or initiate any discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group Person (other than Mergercothe Buyer and its Affiliates or Agents) with respect to or that would reasonably be expected to lead to any Acquisition Proposal, or enter into any letter of intent, agreement in principle, definitive agreement, arrangement or understanding relating to an Acquisition Proposal or requiring it to abandon, terminate or fail to consummate the Merger; provided, however, that, at any time prior to obtaining the approval and adoption of the Seller’s stockholders of this Agreement and the transactions contemplated by this Agreement and so long as the Seller shall not have breached any of the provisions of this Section 6.5, the Seller or its Agents may furnish or cause to be furnished information to, and negotiate or otherwise engage in discussions with, any person that has made after the date of this Agreement, an Acquisition Proposal if and only to the extent that (i) the board of directors of the Seller determines in good faith (x) after consultation with its affiliates outside legal counsel that such action is required by its fiduciary duties under applicable law and (y) after consultation with its financial advisor, such Acquisition Proposal would if consummated, constitute a Superior Proposal, (ii) the Seller provides written notice to the Buyer to the effect that it is furnishing information to, or representativesentering into or participating in discussions or negotiations with, such Person (including, without limitation, the identity of such Person), (iii) concerning the Seller keeps the Buyer informed of the status of any mergersuch discussions or negotiations, tender offerincluding, exchange offerwithout limitation, sale promptly informing the Buyer (but in any event, within 24 hours) of assetsall material developments relating thereto and (iv) prior to furnishing any information to such Person, sale the Seller shall enter into a customary confidentiality agreement with such individual or entity that is no less restrictive, in any respect, than the Confidentiality Agreement dated as of shares April 2, 2004 by and between the Buyer and the Seller (the “Confidentiality Agreement”), and the Seller shall enforce, and shall not waive any of capital stock or debt securities or similar transactions involving the Company provisions of, any such confidentiality agreement. Without limiting the foregoing, if any Subsidiary of the Seller or any SubsidiaryAgent takes or permits to be taken any action which, division if taken or operating permitted to be taken by the Seller itself, would be a breach of a provision of this Section 6.5, it shall be deemed to be a breach thereof by the Seller for all purposes of this Section 6.5, including 6.5(c); provided that, in the case of any such Agent, to be deemed a breach of this Section 6.5 by the Seller, such action must be taken by, or principal with the encouragement or the prior knowledge of, an individual in the business unit (including for purposes of the Company Seller’s financial advisor, such advisor’s Investment Banking Business Segment (an "Acquisition Proposal"as described in such advisor’s Form 10-K for the year ended December 31, 2003). The Company will ) of such Agent which is acting for the Seller in connection with this Agreement or the transactions contemplated hereby.
(b) Upon execution of this Agreement, the Seller shall cease immediately cease and cause to be terminated, and shall cause its Agents and Subsidiaries and its Subsidiaries’ Agents to cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Seller be returned or destroyed pursuant to the terms of any confidentiality agreement, and the Seller shall enforce, and shall not waive any of the foregoing. Notwithstanding provisions of, any such confidentiality agreement.
(c) Nothing contained in this Section 6.5 shall prohibit the foregoingboard of directors of the Seller from, prior to the Company may furnish information concerning Seller Stockholders’ Meeting, withdrawing, modifying, qualifying or amending in a manner materially adverse to the Buyer its business, properties or assets recommendation to any corporation, partnership, person or other entity or group pursuant the Seller’s stockholders required under Section 6.2(b) in response to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an unsolicited bona fide written Acquisition Proposal (A) if, but only if: (i) after consultation with the Seller’s outside legal counsel, the board of directors of the Seller determines in good faith that such action is required by its fiduciary duties under applicable law; (ii) after consultation with its financial advisor, the board of directors of the Seller has determined in good faith that such Acquisition Proposal is a Superior Proposal; (iii) the Seller has given the Buyer five (5) business days prior written notice of its intention to withdraw, modify, qualify or amend in a manner materially adverse to the Buyer its recommendation to the Seller’s stockholders required under Section 6.2(b) and (iv) the Seller is not in breach in any material respect of any of the provisions of Section 6.5 and (B) if, in the event that, during such five (5) business days, the Buyer makes a counterproposal to such Acquisition Proposal (any such counterproposal, a “Counterproposal”), the board of directors of the Seller, after consultation with its financial advisor, determines in good faith that (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal the Counterproposal is not at least as favorable to the Board Seller’s stockholders as the Acquisition Proposal from a financial point of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Companyview, and (y) if the Board Counterproposal is not at least as favorable generally to the Seller’s stockholders as the Acquisition Proposal (taking into account all financial and strategic considerations and other relevant factors, including relevant legal, financial, regulatory and other aspects of Directors such proposals, and the conditions, prospects and time required for completion of such Acquisition Proposal). Any disclosure (other than a “stop, look and listen” or similar communication of the Company determines, only after receipt of advice from independent legal counsel type contemplated by Rule 14d-9(f) under the Exchange Act) made pursuant to this Section 6.5 shall be deemed a change in the Seller’s recommendation to its stockholders required under Section 6.2(b) in a manner materially adverse to the Company Buyer, unless, as a part of such disclosure, the board of directors of the Seller expressly reaffirms its recommendation to its stockholders in favor of the adoption of this Agreement and firmapproval of the Merger. Any such withdrawal, that modification, qualification or amendment of the failure recommendation of the board of directors of the Seller shall not change the approval of such board for purposes of causing any state takeover statute or other state law 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 be inapplicable to the Company's shareholders under applicable lawtransactions contemplated by this Agreement or by any of the other Transaction Documents. The Company Nothing in this Section 6.5 shall immediately affect the Seller’s obligation to hold the Seller Stockholders’ Meeting in accordance with Section 6.2.
(d) [Intentionally omitted]
(e) From and after the execution of this Agreement, the Seller shall notify the Buyer promptly (but in any event within 24 twenty-four hours) communicate to Mergerco of the terms receipt, directly or indirectly, of any proposalinquiries, discussiondiscussions, negotiation negotiations, proposals or inquiry expressions of interest with respect to or that would reasonably be expected to lead to an Acquisition Proposal (including a summary of the material terms and will disclose any written materials received by the Company in connection with such proposalconditions thereof, discussionincluding price, negotiation or inquiry) and the identity of the party other individual or entity or individuals or entities (including any parent entities thereof to the extent known) making such proposal or inquiry which it may receive in respect proposal), and promptly furnish to the Buyer a copy of any such transactionrequest for information or written proposal in addition to a copy of any information provided by any third party relating thereto. In addition, the Seller shall immediately advise the Buyer, in writing, if the board of directors of the Seller shall make any determination as to any Acquisition Proposal as contemplated by the proviso to the first sentence of Section 6.5(a).
(f) Nothing in this Section 6.5 shall prohibit the Seller from complying with Rule 14d-9, Rule 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Acquisition Proposal; provided that, in so doing, it does not take or disclose any position or actions that do not comply with the provisions of Section 6.2(b) or this Section 6.5.
(g) For the purposes of this Agreement, “Superior Proposal” shall mean any bona fide written Acquisition Proposal relating to more than 50% of the outstanding shares of Seller Common Stock or more than 50% of the Seller’s assets made by a third party that was not solicited by the Seller or any of its Agents which the board of directors of the Seller determines in good faith after consultation with its financial advisor, to be more favorable to the Seller’s stockholders than the Merger from a financial point of view and to have a likelihood of successful completion on the terms proposed (including any financing conditions with respect thereto) that is at least as likely as the transactions contemplated hereby, after taking into account all relevant financial, regulatory, legal and other aspects of such Acquisition Proposal, including
Appears in 1 contract
Sources: Merger Agreement (Digitas Inc)
No Solicitation. Neither (a) Each Principal Stockholder and Acquired Company, shall, and shall cause each of their respective Affiliates, counsel, financial advisors, auditors and other authorized representatives (collectively, the Company nor “Trinity Representatives”) to immediately cease any of its Subsidiaries existing discussion or affiliates shall negotiation with any Persons (and other than Sunrise) conducted prior to the Company shall use its best efforts date hereof with respect to cause its officersany proposed, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)potential or contemplated acquisition, directly or indirectly, encourageof the Company Capital Stock or the assets of the Acquired Companies. Each Principal Stockholder and Acquired Company shall refrain, solicitand shall cause each Trinity Representative to refrain during the term of this Agreement from taking, directly or indirectly, any action (a) other than as contemplated by this Agreement, to solicit or initiate the submission of any proposal or indication of interest from any Person (other than Sunrise) relating to an acquisition of the Company Capital Stock or the assets of the Acquired Companies, or any merger, consolidation, combination, share exchange, recapitalization, liquidation or dissolution involving any Principal Stockholder or Acquired Company (a “Strategic Transaction”), (b) to participate in or initiate any discussions or negotiations withregarding, or provide furnish to any Person any information with respect to, or that may reasonably be expected to lead to, a Strategic Transaction with any corporation, partnership, person or other entity or group Person (other than MergercoSunrise) or (c) to authorize, engage in, or enter into any of its affiliates agreement or representativesunderstanding (other than with Sunrise) concerning any mergerwith respect to a Strategic Transaction.
(b) Notwithstanding the foregoing, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving nothing contained in this Agreement shall prevent the Company or its board of directors or any Subsidiaryofficer, division director, employee, investment banker, attorney or operating other adviser or principal business unit representative of the Company, acting at the direction of and on behalf of the Company, at any time prior to receipt of the Stockholder Approval from (i) providing information in response to a request therefor by a Person who has delivered to the Company an unsolicited bona fide written proposal regarding a Strategic Transaction if the Company receives from the Person so requesting such information an executed confidentiality agreement the terms of which are (without regard to the terms of the Strategic Transaction) (A) no less favorable to the Company than those contained in the Confidentiality Agreement and (B) no less restrictive on the Person requesting such information than those contained in the Confidentiality Agreement; or (ii) engaging in negotiations or discussions with a Person who has delivered to the Company an unsolicited bona fide written proposal regarding a Strategic Transaction; if, and only to the extent that, in each such case referred to in clause (i) or (ii) immediately above, prior to receipt of the Stockholder Approval, (1) the board of directors of the Company determines in good faith (an "Acquisition after consultation with its financial advisor and outside legal counsel) that the Strategic Transaction, if accepted, is reasonably likely to be consummated, (2) the board of directors of the Company determines in good faith (after consultation with its financial advisor) that the Strategic Transaction would, if consummated, result in a transaction that is more favorable to the Company’s stockholders than the Merger from a financial point of view (any Strategic Transaction as to which such determination in clauses (1) and (2) immediately above is made being referred to in this Agreement as a “Superior Proposal"”) and (3) the board of directors of the Company determines in good faith (after consultation with outside legal counsel) that such action is required by the fiduciary duties of the board of directors to the Company’s stockholders under applicable law.
(c) Nothing in this Section 7.13 shall permit the Company to enter into any agreement, orally or in writing, with respect to a Strategic Transaction during the term of this Agreement (other than a confidentiality agreement as described above). The Company will immediately cease promptly shall advise Sunrise of any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 Strategic Transaction (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco including the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) thereof and the identity of the party person making such proposal or inquiry which it may receive in the Strategic Transaction) and inquiries with respect to any Strategic Transaction and shall keep Sunrise informed on a current basis of the status of any such transactiondiscussions regarding a Strategic Transaction. Nothing herein shall prevent the board of directors of the Company from complying with Rule 14e-2 under the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (will, and the Company shall use its best efforts to will cause its officers, directors, employees, representatives subsidiaries and agents, including, but not limited their respective Representatives to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore Persons that may be ongoing with respect to any Acquisition Proposal. The Company will not, nor will it permit any of its subsidiaries to, nor will it authorize or permit any of its Representatives to, directly, or indirectly, (a) solicit or initiate, or knowingly encourage the foregoing. Notwithstanding submission of, any Acquisition Proposal or (b) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal; provided, however, that, notwithstanding the foregoing, the Company may furnish information concerning its businessif, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal prior to the Board of Directors of the Company relating to any such transaction which the Closing, Company's Board of Directors determines (in good faith, based upon the written advice of independent investment bankers for counsel, which may be the Company) represents a superior transaction 's regularly engaged outside counsel, that not to the Merger for the shareholders of the Company, and (y) if do so would be inconsistent with the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause the Board of Directors to violate its Directors' fiduciary duties to the Company's shareholders stockholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposalLaw, discussion, negotiation or inquiry (and will disclose any written materials received by the Company may, in connection response to an unsolicited Acquisition Proposal and so long as it provides notice to Buyer of its receipt of such unsolicited Acquisition Proposal, (i) furnish information with such proposal, discussion, negotiation or inquiryrespect to the Company pursuant to a customary confidentiality and standstill agreement (which is substantially similar to the agreement with Buyer) and (ii) participate in discussions or negotiations regarding such Acquisition Proposal. Without limiting the identity foregoing, it is understood that any violation of the party making restrictions set forth in the previous sentence by any subsidiary of Company or any of Company's Representatives, whether or not such proposal Person is purporting to act on behalf of Company or inquiry which it may receive in respect any of any such transaction.its subsidiaries or otherwise, shall be deemed to be a breach of this Section 4.13
Appears in 1 contract
No Solicitation. Neither From and after the date of this Agreement until the Closing or termination of this Agreement pursuant to Article 8, the Selling Shareholders and the Company nor will not and will not authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officerstheir respective representatives, directors, employeesaffiliates, representatives and agentsshareholders or employees or any investment banker, including, but not limited attorney or other advisor or representative retained by it (all of the foregoing collectively being the "Company Shareholder Representatives") to, investment bankers, attorneys and accountants, not to), directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, solicitor facilitate the making of any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in in, maintain or initiate discussions continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations withregarding, or provide deliver or make available to any Person any non-public information with respect to, or take any corporation, partnership, person or other entity or group (other than Mergercoaction regarding, any inquiry, expression of its affiliates interest, proposal or representativesoffer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (iii) concerning agree to, accept, approve, endorse or recommend (or publicly propose or announce any mergerintention or desire to agree to, tender offeraccept, exchange offerapprove, sale endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company intent or any Subsidiary, division other Contract contemplating or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company otherwise relating to any such Acquisition Proposal, or (v) enter into any other transaction which or series of transactions not in the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders ordinary course of the Company's business, and (y) if the Board consummation of Directors of which could reasonably be expected to impede, interfere with, prevent or materially delay the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco Share Purchase other than as expressly permitted by the terms of this Agreement. If any proposalCompany Shareholder Representative, discussionwhether in his or her capacity as such or in any other capacity, negotiation or inquiry (and will disclose takes any written materials received by action that the Company in connection with is obligated pursuant to this Section 5.1 not to authorize or permit such proposalCompany Shareholder Representative to take, discussion, negotiation or inquiry) and then the identity Company shall be deemed for all purposes of the party making such proposal or inquiry which it may receive in respect of any such transactionthis Agreement to have breached this Section 5.1.
Appears in 1 contract
No Solicitation. Neither (a) Except as set forth in this Section 5.5, the Company Target REIT shall not, nor shall it authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, not other advisors and representatives, collectively, “Representatives”) to), directly or indirectly, encourage, :
(i) solicit, participate in initiate, encourage or initiate discussions take any other action to facilitate any inquiries or negotiations withthe making of any proposal or offer that constitutes, or provide any information could reasonably be expected to lead to, any corporationAcquisition Proposal, partnershipincluding without limitation (A) approving any transaction under Section 203 of the DGCL that would require such approval in the absence of Article TENTH of the Target REIT’s charter, (B) approving any person becoming an “interested stockholder” under Section 203 of the DGCL that would require such approval in the absence of Article TENTH of such Target REIT’s charter and (C) amending or other entity granting any waiver or group (other than Mergerco, release under any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities standstill or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore agreement with respect to any of the foregoingTarget Stock; or
(ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal. Notwithstanding the foregoing, prior to the Company may furnish information concerning its businessClosing Date, properties the Target REIT may, to the extent necessary to act in a manner consistent with the fiduciary obligations of the Target REIT Board of Directors, as determined in good faith by the Target REIT Board of Directors, after consultation with outside counsel, in response to a Superior Proposal or assets to any corporationa bona fide, 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 unsolicited written Acquisition Proposal (x) if such entity made or group has on an unsolicited basis submitted a bona fide written proposal to received after the Board date of Directors of this Agreement that the Company relating to any such transaction which the Target REIT Board of Directors determines in good faith after consultation with outside counsel and a nationally recognized independent financial advisor is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Target REIT of this Section 5.5, and subject to compliance with Section 5.5(c), (based upon the advice of independent investment bankers for the Companyx) represents a superior transaction furnish information with respect to the Merger for Target REIT to the shareholders of the Company, person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement and (y) if participate in discussions or negotiations (including solicitation of a revised Acquisition Proposal) with such person and its Representatives regarding any Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.5(a) by any Representative of the Target REIT, whether or not such person is purporting to act on behalf of the Target REIT or otherwise, shall be deemed to be a breach of this Section 5.5(a) by the Target REIT.
(b) Neither the Target REIT Board of Directors nor any committee thereof shall:
(i) except as set forth in this Section 5.5, withdraw or modify, or publicly (or in a manner designed to become public) propose to withdraw or modify, in a manner adverse to the Company, its approval or recommendation with respect to the adoption of this Agreement and approval of the Company determinesMerger contemplated hereby;
(ii) cause or permit the Target REIT to enter into any letter of intent, only after receipt memorandum of advice from independent legal counsel understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement constituting or relating to any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.5(a) entered into in the circumstances referred to in Section 5.5(a)); or
(iii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal. Notwithstanding the foregoing, to the Company and firmextent necessary to act in a manner consistent with the fiduciary obligations of the Target REIT Board of Directors, that as determined in good faith by the failure to provide such information or access or to engage in such discussions or negotiations would cause Target REIT Board of Directors, after consultation with outside counsel, the Target REIT Board of Directors may, in response to violate its fiduciary duties a Superior Proposal that did not result from a breach by the Target REIT of this Section 5.5, take any actions described in clauses (i), (ii) or (iii) of the first sentence of this Section 5.5(b) or cause the Target REIT to not solicit consents pursuant to clause (b) of Section 5.3.
(c) The Target REIT shall promptly advise the Company's shareholders under applicable law. The Company shall immediately orally, with written confirmation to follow promptly (and in any event within 24 hours) communicate to Mergerco hours of the terms receipt of the applicable Acquisition Proposal or request for information), of any proposal, discussion, negotiation Acquisition Proposal or inquiry (and will disclose any written materials received by the Company request for nonpublic information in connection with any Acquisition Proposal, or of 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 proposal, discussion, negotiation Acquisition Proposal or inquiry) inquiry and the identity of the party person making such proposal or inquiry which it may receive in respect of any such transactionAcquisition Proposal or inquiry. The Target REIT shall not provide any information to or participate in discussions or negotiations with the person or entity making any Superior Proposal until one business day after the Target REIT has first notified the Company of such Acquisition Proposal as required by the preceding sentence. If the Company shall make a counterproposal to an Acquisition Proposal, the Target REIT shall consider such counterproposal in good faith and shall cause its financial and legal advisors to negotiate in good faith on its behalf the terms of such counterproposal.
(d) On the date hereof, the Target REIT shall, and shall cause its Representatives to, cease immediately all discussions and negotiations regarding any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal. The Target REIT shall use commercially reasonable efforts to have all copies of all nonpublic information it and its Representatives have distributed on or prior to the date of this Agreement to other potential purchasers returned to the Target REIT as soon as possible.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Franklin Street Properties Corp /Ma/)
No Solicitation. Neither (a) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 7, the Company, its subsidiaries and their affiliates shall not, and shall cause the Company nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, Representatives not to), directly or indirectly, encourage(i) solicit, solicitinitiate or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiry in connection with or the making of any proposal from any Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal (as defined in Section 5.09(f)) (it being understood that actions taken pursuant to the requirements of this Agreement shall not be deemed “encouragement” for purposes of the foregoing covenant and that the Company may make disclosures of non-public information to the extent it is required to make such disclosures pursuant to applicable law or Contracts in existence as of the date of this Agreement), (ii) enter into, explore, maintain, participate in or initiate continue any discussion or negotiation with any Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) regarding an Acquisition Proposal, or otherwise cooperate in any way with, or assist or participate in, or facilitate any effort or attempt by any other Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) to make or effect an Acquisition Proposal, (iii) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal, or (iv) authorize or permit any Company Representative to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board, prior to approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, from, subject to compliance with Section 5.09(c), furnishing information to, or engaging in discussions or negotiations with, any Person that makes an unsolicited bona fide written Acquisition Proposal (which did not result from a breach of this Section 5.09) if (A) the Company Board determines in good faith after consultation with independent outside legal counsel, that such action is necessary for the Company Board to comply with its fiduciary duties under applicable law, (B) the Acquisition Proposal constitutes or provide any would reasonably be expected to lead to a Superior Proposal (as defined in Section 5.09(g)) and (C) prior to furnishing such information to, or engaging in discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement (which agreement shall be provided to Parent for information purposes) with terms no less favorable to the Company than those contained in the Non-Disclosure Agreement. Without limiting the foregoing, it is understood and agreed that any corporationviolation of the restrictions set forth in this Section 5.09(a) by any Company Representative, partnership, person whether or other entity or group (other than Mergerco, any not acting on behalf of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiaryof its subsidiaries or any of their affiliates, division shall be deemed to be a breach of this Section 5.09 by the Company.
(b) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 7, if the Company Board is entitled to furnish information to, or operating engage in discussions or principal business unit negotiations with, any Person on the terms contemplated in Section 5.09(a), the Company Board may, prior to the approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, subject to compliance with Section 5.09(c), terminate this Agreement in respect of any Acquisition Proposal pursuant to the termination provisions set forth in Article 7 hereof if (A) such Acquisition Proposal constitutes a Superior Proposal and (B) the Company Board shall have determined in good faith after consultation with independent outside legal counsel, that such action is necessary for the Company Board to comply with its fiduciary duties under applicable law.
(c) The Company (i) will promptly (but in any event within two business days) notify Parent orally and in writing of the receipt of any Acquisition Proposal or any inquiry regarding the making of an "Acquisition Proposal including any request for non-public information, the terms and conditions of such request, Acquisition Proposal or inquiry and the identity of the Person making such request, Acquisition Proposal or inquiry and (ii) will keep Parent informed of the status and details (including amendments and proposed amendments) of any such request, Acquisition Proposal or inquiry. Prior to taking any of the actions referred to in Section 5.09(a), the Company Board shall promptly (but in any event within one day) notify Parent orally and in writing of any action it proposes to take with respect to such Acquisition Proposal". After taking any such action, the Company Board shall promptly advise Parent orally and in writing of the status of such action as developments arise or as requested by Parent. Without limiting the foregoing, at least three business days (the “Three Day Period”) prior to taking any of the actions referred to in Section 5.09(b). , the Company Board shall notify Parent of any such action it proposes to take and, during the Three-Day Period, the Company Board or the Special Committee, as applicable, shall negotiate in good faith with Parent with respect to any revised proposal to acquire the Common Shares that Parent may make prior to or during the Three-Day Period.
(d) Nothing contained in this Agreement shall prevent the Company from (i) complying with Rules 14e-2 and 14d-9 under the Exchange Act with regard to a tender or exchange offer, (ii) making a “stop-look-and-listen” communication to its shareholders of the nature contemplated by Rule 14d-9 under the Exchange Act and (iii) making such other disclosures to the Company’s shareholders, and take such other actions, as are required by Law (provided however, with respect to each of the foregoing clauses (i), (ii) and (iii), that neither the Company, the Company Board nor the Special Committee shall, except as permitted by Section 5.09(b), propose to approve or recommend any Acquisition Proposal).
(e) The Company will and each of its subsidiaries shall immediately cease and cause its affiliates and the Company Representatives to cease any and all existing activities, discussions or negotiations with any parties (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) conducted heretofore with respect to any Acquisition Proposal, and shall use its reasonable best efforts to cause any such parties in possession of the foregoing. Notwithstanding the foregoing, confidential information about the Company may furnish information concerning its business, properties that was furnished by or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors behalf of the Company relating to return or destroy all such information in the possession of any such party or its representatives.
(f) For purposes of this Agreement, “Acquisition Proposal” shall mean any offer or proposal for, or any indication of interest in, (i) any direct or indirect acquisition or purchase of 15% or more of the total assets of the Company or any of its subsidiaries, in a single transaction which or series of transactions, other than the Board sale of Directors determines inventory in the ordinary course of business (based upon the advice ii) any direct or indirect acquisition or purchase of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders 15% or more of any class of equity securities of the Company, and in a single transaction or series of transactions, (yiii) any tender offer or exchange offer (including a self-tender offer) that if the Board consummated would result in any person beneficially owning 15% or more of Directors any class of equity securities of the Company determinesCompany, only after receipt of advice from independent legal counsel to (iv) any merger, consolidation, share exchange, business combination, recapitalization, reclassification or other similar transaction involving the Company and firmor (v) any public announcement of an agreement, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation plan or inquiry (and will disclose intention to do any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionforegoing, other than the transactions contemplated by this Agreement.
Appears in 1 contract
No Solicitation. Neither (a) To allow time for negotiation of the Refinancing, from and after the date hereof until the earlier of (i) the Closing and (ii) expiration of the provisions of this Section 6.4(a) pursuant to Section 6.4(b) hereof, and except as expressly permitted by the following provisions of this Section 6.4(a), Company nor shall not, and shall not authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its Company's officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountantsattorneys, not financial advisors or other representatives (collectively, "Company Representatives") to), directly or indirectly, encourage, solicit, participate initiate or encourage (including by way of furnishing information or assistance), or take other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, an Acquisition Proposal from any Third Party or engage in any discussions or initiate negotiations relating thereto or in furtherance thereof or furnish to any Person any information with respect to, or accept or enter into any agreement that would result in, or waive any agreement that would prevent or discourage, any Acquisition Proposal; provided, however, that nothing contained in this paragraph shall prohibit the Board of Directors from (1) obtaining such information with respect to any unsolicited Acquisition Proposal, which the Board of Directors determines, after consultation with counsel, is necessary to determine whether such Acquisition Proposal would constitute a Superior Proposal, or (2) furnishing information to, or entering into discussions or negotiations with, or provide any information toperson that makes an unsolicited bona fide, fully financed, written Acquisition Proposal which relates to the acquisition by any corporationThird Party of all of the equity of Company, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any whether by merger, tender offeroffer or otherwise, exchange offerif and only to the extent that (A) the Board of Directors, sale of assetsafter consultation with independent legal counsel, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate determines in discussions and negotiations with good faith that such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to action is necessary for the Board of Directors of the Company relating to any such transaction which comply with its fiduciary duties to Company's stockholders under applicable law, (B) the Board of Directors determines (based upon in good faith after consultation with a nationally recognized expert with experience in appraising the advice terms and conditions of independent investment bankers for such unsolicited Acquisition Proposal, that such unsolicited Acquisition Proposal after taking into account the Company) represents a superior strategic benefits to be derived from the transaction to with Purchaser and the Merger for the shareholders long-term prospects of the Company, and (y) would, if the Board of Directors of the Company determinesconsummated, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage result in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties a transaction more favorable to the Company's shareholders under applicable law. The stockholders from a financial point of view than the transactions contemplated hereby (any such more favorable bona fide unsolicited Acquisition Proposal being referred to as a "Superior Proposal"), and (C) prior to taking such action, Company shall immediately (in any event within 24 hoursi) communicate to Mergerco the terms notifies Purchaser of any proposalAcquisition Proposal (including, discussionwithout limitation, negotiation or inquiry (the material terms and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) conditions thereof and the identity of the party person making such proposal or inquiry which it may receive the Acquisition Proposal) as promptly as practicable (but in respect no case later than 24 hours) after receipt thereof, (ii) provides Purchaser with a copy of any written Acquisition Proposal, (iii) thereafter informs Purchaser on a prompt basis of the status of any discussion or negotiations with such transactiona Third Party and any material changes to the terms and conditions of such Acquisition Proposal, (iv) promptly gives Purchaser a copy of any information delivered to such Third Party which has not been previously reviewed by Purchaser and (v) receives from such Third Party an executed confidentiality agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Non-Disclosure Agreement.
(b) The provisions of Section 6.4(a) shall expire (without affecting the provisions of Section 8.4) if either (i) a term sheet for the Refinancing (which shall have been agreed to by Company and Purchaser) (the "Term Sheet") is not presented to the agent banks for the Company's Bank Debt (the "Agent Banks") by December 21, 2000 assuming reasonable cooperation from Company, or (ii) if the Agent Banks do not recommend approval of the Term Sheet (as such Term Sheet may be amended from time to time with the approval of Company and Purchaser) to the Lenders by February 27, 2001.
Appears in 1 contract
Sources: Securities Purchase Agreement (Leucadia National Corp)
No Solicitation. Neither The Company agrees that between the date of this Agreement and the date (the "Delivery Date") that is forty-five (45) days after delivery by the Company nor to Subscriber of the US GAAP Financial Statements in accordance with Section 3(b) (the "No Solicitation Period"), none of the Company and its subsidiaries or any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives and or agents, includingnor any of the stockholders of the Company that are signatories hereto (such stockholders and any other stockholder of the Company that becomes a signatory hereto pursuant to Sections 3(a) and 12, but not limited tocollectively, investment bankers, attorneys and accountants, not tothe "Signatory Stockholders") will (i) other than in connection with a Permitted Transaction (as defined below), directly or indirectly, encourage, solicit, participate in initiate, consider, encourage or initiate discussions accept any other proposals or negotiations with, offers from any Person (A) relating to any acquisition or provide purchase of all or any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any portion of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of the capital stock or debt securities or similar transactions involving assets of the Company or any Subsidiaryof its subsidiaries or (B) to enter into any merger, division consolidation, business combination, recapitalization, reorganization or operating other extraordinary business transaction involving or principal business unit otherwise relating to the Company or any of its subsidiaries (any such transaction, a "Combination Transaction") or (ii) participate in any discussions, conversations, negotiations and other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to seek to do any of the Company (an "Acquisition Proposal")foregoing. The Company will and each Signatory Stockholder immediately shall cease any and cause to be terminated all existing activitiesdiscussions, discussions or conversations, negotiations and other communications with any parties Persons conducted heretofore with respect to any of the foregoing. Notwithstanding The Company and each Signatory Stockholder shall notify Subscriber promptly if any such proposal or offer (including with respect to a Permitted Transaction), or any inquiry or other contact with any Person with respect thereto, is made and shall, in any such notice to Subscriber, indicate in reasonable detail the foregoingidentity of the Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. The Company and each Signatory Stockholder agrees not to, and the Company may furnish information concerning agrees to cause each of its businesssubsidiaries not to, properties without the prior written consent of Subscriber, release any Person from, or assets waive any provision of, any confidentiality or standstill agreement to which the Company or any corporationof its subsidiary or such Signatory Stockholder is a party. "Permitted Transaction" shall mean (i) the sale by the Company of newly issued shares of Common Stock for consideration not to exceed (euro)2 million in the aggregate during the No Solicitation Period, 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 provided that (x) if the proceeds of such entity or group has on an unsolicited basis submitted a bona fide written proposal issuance are reasonably necessary (and used) to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for fund the Company) represents a superior transaction to the Merger for the shareholders of the Company, 's operations and (y) if Subscriber shall have (and be able to fully exercise) preemptive rights with respect to any such issuance, (ii) the Board sale of Directors any of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately assets or subsidiaries (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company including in connection with a Combination Transaction involving such proposalsubsidiary) that, discussionindividually or in the aggregate during the No Solicitation Period, negotiation or inquiryrepresent not more than ten (10) and the identity percent of the party making Company's total consolidated net income, revenues or assets, in each case, measured at the time a binding agreement relating to such proposal sale (or inquiry which it may receive in respect Combination Transaction) is entered into, or (iii) a Combination Transaction involving the Company where (x) the Company is the surviving entity of any the Combination Transaction and (y) the Company's stockholders as of the date hereof own beneficially and of record at least 90% of the capital stock of such transactionsurviving entity outstanding immediately after completion of such Combination Transaction. The parties acknowledge that the Issue Price takes into account the Company's obligation under this Section 3(c).
Appears in 1 contract
No Solicitation. Neither the Company nor any Each Stockholder, solely in its capacity as a stockholder of its Subsidiaries or affiliates Parent, shall (not, and the Company shall use its best efforts to cause direct its officers, directors, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives and agents(“Representatives”) involved in the Transactions not to: (i) directly or indirectly initiate, includingsolicit, but not limited or knowingly encourage or knowingly facilitate (including by way of providing information or taking any other action) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Competing Proposal for Parent, (ii) directly or indirectly engage in, enter into or participate in any discussions or negotiations with any Person with respect to any Competing Proposal for Parent, (iii) provide any non-public information to, investment bankersor afford access to the business, attorneys and accountantsproperties, assets, books or records of Parent to, any Person (other than Parent, Target, or any designees of Parent or Target) in connection with any Competing Proposal for Parent, (iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement or other similar instrument relating to a Competing Proposal for Parent, (v) knowingly encourage or recommend another Stockholder to not to)appear or vote at a Parent Meeting held, directly or indirectly, encourage, solicit, participate in the context or initiate discussions or negotiations withfor furtherance of the Transactions, or provide any information to, any corporation, partnership, person (vi) resolve or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect agree to do any of the foregoing. Each Stockholder shall, and shall direct its Representatives involved in the Transactions to, immediately cease any solicitation, discussions, or negotiations with any Person or groups (other than Parent, Target, or any designees of Parent or Target) that may be ongoing with respect to any Competing Acquisition Proposal for Parent or potential Competing Proposal for Parent or that could reasonably be expected to lead to a Competing Proposal for Parent. Notwithstanding the foregoing, such Stockholder or its Representative may, solely in response to an inquiry or proposal that did not result from a material breach of this Section 4.5, inform a Person that has made or, to the Company may furnish information concerning its businessknowledge of the Stockholder or Representative (as applicable), properties is considering making a Competing Proposal for Parent of the restrictions of this Section 4.5 and of the Cooperation Agreement. For clarity, if such Stockholder is a venture capital or assets to private equity investor, the term “Representative” (a) shall include any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations general partner of such Stockholder that is still affiliated with such entity or group concerning an Acquisition Proposal Stockholder, but (xb) if shall exclude (i) any limited partner, (ii) any general partner that is no longer affiliated with such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the CompanyStockholder, and (yiii) if the Board any employees or other Representatives, in each case of Directors clauses (i) to (iii), who do not have actual knowledge of the Company determinesTransactions. Each Stockholder acknowledges and agrees that, only after receipt for purposes of advice from independent legal counsel determining whether a breach of this Section 4.5 has occurred, the actions of such Stockholder’s directors and Representatives acting in their authorized capacities on behalf of such Stockholder shall be deemed to be the Company actions of such Stockholder, and firm, that the failure to provide such information or access or to engage Stockholder shall be responsible for any breach of this Section 4.5 by its directors and Representatives acting in their authorized capacities on behalf of such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionStockholder.
Appears in 1 contract
Sources: Voting and Support Agreement (Jounce Therapeutics, Inc.)
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (and the a) The Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)not, directly or indirectly, encouragethrough any officer, director, employee, stockholder, representative or agent of the Company, (i) solicit, participate in initiate or initiate discussions encourage the initiation of any inquiries or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning proposals regarding any merger, tender offer, exchange offer, sale of substantial assets, sale of any shares of capital stock (including without limitation by way of a tender offer or debt securities stock sale), license to any of the Company Intellectual Property Rights or similar transactions involving the Company or other than the Merger (any Subsidiary, division or operating or principal business unit of the Company (foregoing inquiries or proposals being referred to herein as an "Acquisition Proposal"). , (ii) engage in negotiations or discussions concerning, or provide any nonpublic information to any person relating to, any Acquisition Proposal or (iii) agree to, approve or recommend any Acquisition Proposal.
(b) The Company will shall immediately cease notify Parent after receipt of any existing activitiesAcquisition Proposal, discussions or negotiations with any parties conducted heretofore with respect modification of or amendment to any of the foregoing. Notwithstanding the foregoingAcquisition Proposal, or any request for nonpublic information relating to the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations connection with such entity or group concerning an Acquisition Proposal (x) if such or for access to the properties, books or records of the Company by any person or entity or group has on an unsolicited basis submitted a bona fide written proposal to that informs the Board of Directors of the Company relating that it is considering making, or has made, an Acquisition Proposal. Such notice to any such transaction which the Board of Directors determines Parent shall be made orally and in writing.
(based upon the advice of independent investment bankers for the Companyc) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any persons (in other than Parent and Merger Sub) conducted heretofore with respect to any event within 24 hours) communicate Acquisition Proposal or any request for nonpublic information relating to Mergerco the terms Company. The Company agrees not to release any third party from the confidentiality provisions of any proposalconfidentiality agreement to which the Company is a party.
(d) The Company shall ensure that the officers, discussion, negotiation directors and employees of the Company and any investment banker or inquiry (and will disclose any written materials received other advisor or representative retained by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity are aware of the party making such proposal or inquiry which it may receive restrictions described in respect of any such transactionthis Section 5.2.
Appears in 1 contract
No Solicitation. Neither (a) The Company, the Company nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, directors or employees, representatives and agents, including, but not limited to, or investment bankers, attorneys and accountantsattorneys, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person accountants or other entity advisors, agents or group representatives (other than Mergercocollectively, “Representatives”) immediately shall cease and cause to be terminated any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore existing as of the date of this Agreement with respect to any Company Takeover Proposal (as defined in Section 5.02(e)) and, to the extent permitted by the applicable confidentiality or similar agreement governing such activities, discussions or negotiations, require any third parties to such activities, discussions or negotiations to return to the Company or to destroy all confidential information of the foregoingCompany or any Company Subsidiary. Notwithstanding The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representatives of the foregoingCompany or any Company Subsidiary to, (i) directly or indirectly solicit, initiate or encourage (including by way of furnishing information) the submission of, or take any other action designed to facilitate, any inquiries or the making of any proposal that constitutes or is reasonably expected to lead to any Company Takeover Proposal, (ii) enter into any Company Acquisition Agreement (as defined in Section 5.02(b)) with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal; provided, however, that prior to receipt of the Company Shareholder Approval (the “Company Applicable Period”), the Company may furnish information concerning its businessmay, properties or assets to any corporationthe extent required by the fiduciary obligations of the Company Board to the shareholders of the Company under applicable Law, partnershipas determined in good faith by a majority of the members of the Company Board after consultation with the Company’s outside counsel, person or other entity or group pursuant in response to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of Company Takeover Proposal that is made by a person that the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for determines, in good faith, after consultation with the Company) represents ’s outside counsel and financial advisors, constitutes or is reasonably expected to result in a superior transaction to Superior Company Proposal that was not solicited by the Merger for the shareholders Company or its Representatives and that did not otherwise result from a breach or a deemed breach of the Companythis Section 5.02(a), and subject to compliance with Section 5.02(c), (yx) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel furnish information with respect to the Company and firm, that the 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 shareholders under applicable law. The person making such Company shall immediately Takeover Proposal pursuant to a confidentiality and standstill agreement not less restrictive of the other party than the Confidentiality Agreement (as defined in any event within 24 hours) communicate Section 6.02); provided that such confidentiality and standstill agreement may allow such party to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by submit to the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such a non-public proposal or inquiry which it may receive in respect of any such transaction.offer relating to a Company Takeover Proposal; and
Appears in 1 contract
Sources: Merger Agreement
No Solicitation. Neither (a) From and after the Company nor any date of its Subsidiaries or affiliates shall (and this Agreement until the termination of this Agreement pursuant to Article VII, the Company shall use its best efforts to not, and it shall cause its Subsidiaries and the officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys attorneys, agents and accountants, representatives of the Company or any of its Subsidiaries not to), directly or indirectly, encourage, (i) solicit, participate initiate or knowingly take any action knowingly to facilitate or encourage the making, submission or announcement of any Acquisition Proposal or (ii) engage in or initiate any discussions or negotiations with, or provide furnish any nonpublic information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving relating to the Company or any Subsidiaryof its Subsidiaries or afford any access to the properties, division books or operating or principal business unit records of the Company (or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made or, to the knowledge of the Company, is seeking to make, an "Acquisition Proposal"). The Company will immediately cease Without limiting the generality of the foregoing, it is understood that any existing activities, discussions or negotiations with any parties conducted heretofore with respect to violation of any of the foregoingrestrictions set forth in this Section 5.3(a) by any officer, director, employee, investment banker, attorney, agent or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.3(a) by the Company. Notwithstanding the foregoing, the Company or its board of directors, directly or indirectly through advisors, agents or other intermediaries, may furnish information concerning its businessthe businesses, properties or assets of the Company or any of its Subsidiaries to any corporationPerson or group, partnership, person or other entity or group including furnishing nonpublic information pursuant to appropriate an executed confidentiality agreementsagreement, the terms of which are as least as restrictive as the terms contained in the Confidentiality Agreement, and may negotiate and participate engage in discussions and negotiations with such entity Person or group concerning an Acquisition Proposal acquisition only if: (xA) if such entity Person or group has on submitted an unsolicited basis submitted a bona fide written proposal to Acquisition Proposal which the Board board of Directors directors of the Company relating determines in good faith is, or is reasonably likely to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents result in, a superior transaction to the Merger for the shareholders of the Company, Superior Proposal and (yB) if the Board board of Directors directors of the Company determinesdetermines in good faith, only after receipt of advice from independent legal counsel to the Company and firmconsultation with outside counsel, that the failure to provide take such information or access or to engage action would result in such discussions or negotiations would cause the Board a breach of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. duties.
(b) The Company shall immediately promptly (and in any event within 24 hours) communicate to Mergerco the terms notify Parent of any proposalAcquisition Proposal, discussionany material modifications thereto or any request for non-public information relating to the Company or its Subsidiaries or for access to the properties, negotiation books or inquiry records of the Company or any of its Subsidiaries by any Third Party that, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or request. The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent informed on a reasonably current basis of the status and details of any such Acquisition Proposal or request, and shall promptly (and will disclose in any event within 24 hours) provide to Parent a copy of all written materials received subsequently provided to or by the Company in connection with such proposalAcquisition Proposal or request.
(c) The Company shall, discussion, negotiation or inquiry) and shall cause its Subsidiaries and the identity officers, directors, employees, investment bankers, attorneys, agents and representatives of the party making such proposal Company and any of its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or inquiry which it may receive in negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal, shall terminate any access of any such transactionThird Party to any nonpublic information and shall request the return or destruction of any nonpublic information provided to any such Third Party in connection with any such activities, discussions or negotiations.
(d) Except as set forth in this Section 5.3(d), the board of directors of the Company shall not (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation by the board of directors of the Company of this Agreement or the transactions contemplated hereby, including the Merger, or take any action or make any statement in connection with the Company Stockholders Meeting inconsistent with such approval or recommendation, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, the board of directors of the Company shall be permitted to take the actions described in clause (i) of this Section 5.3(d) if (A) the Company has complied with this Section 5.3, (B) the board of directors of the Company determines in good faith, after consultation with outside counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties to the Company’s stockholders under applicable Law, and (C) the Company has provided Parent prior written notice of its intent to take any such action at least three Business Days prior to taking such action. No withdrawal or modification by the Company of the approval or recommendation of this Agreement or the transactions contemplated hereby or termination of this Agreement shall have any effect on the approvals of, and other actions referred to herein (collectively, the “Section 203 Approvals”) for the purpose causing Section 203 of the DGCL and similar restrictions under other applicable Laws and the Confidentiality Agreement to be inapplicable to, this Agreement and the transactions contemplated hereby and thereby, which Section 203 Approvals are irrevocable.
(e) Nothing contained in this Section 5.3 shall prohibit the Company or its board of directors, directly or indirectly through advisors, agents or other intermediaries, from 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(a) promulgated under the Exchange Act or making any disclosure or recommendation to the Company’s stockholders if, after consultation with outside counsel, the board of directors determines in good faith that failure to take such action would result in a breach of its fiduciary duties to the Company’s stockholders.
Appears in 1 contract
No Solicitation. (a) Neither the Company Company, Parent nor any of its their respective Subsidiaries nor any of the officers, directors or affiliates shall (employees of the Company, Parent or their Subsidiaries shall, and each of the Company and Parent shall use all reasonable best efforts to cause its and its Subsidiaries' attorneys, accountants, investment bankers, financial advisors and other agents (collectively, "Representatives") not to, and on becoming aware of it will use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited stop any such person from continuing to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, (i) solicit, participate initiate or encourage any inquiries or proposals that constitute, or could reasonably be expected to lead to, an Acquisition Proposal involving such party or any of its Subsidiaries, (ii) engage in any negotiations or initiate discussions concerning, or provide any non-public information of such party to any person relating to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal (other than informing persons of the existence of the provisions contained in this Section 6.01), or (iii) enter into any agreement, arrangement or understanding (other than a confidentiality agreement entered into in accordance with this Section 6.01(a)) contemplating or relating to any Acquisition Proposal or requiring such party to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, however, that, prior to receipt of the Company Stockholder Approval (in the case of the Company) or Parent Stockholder Approval (in the case of Parent), nothing contained in this Agreement shall prevent the Company or Parent, or their respective Boards of Directors, from (A) furnishing non-public information to, or entering into discussions or negotiations with, any person in connection with an unsolicited bona fide written Acquisition Proposal by such person, if and only to the extent that (1) such Acquisition Proposal was made after the date of this Agreement and shall not have been withdrawn, (2) such Acquisition Proposal was not solicited, initiated, encouraged or provide any facilitated after the date of this Agreement in breach of, and did not otherwise result from a breach of, this Section 6.01(a), (3) the Board of Directors of such party determines in good faith by affirmative vote of a majority of all of its members, after consultation with its outside counsel and financial advisors, that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal, (4) prior to furnishing such non-public information to, any corporationor entering into discussions or negotiations with, partnershipsuch person, such Board of Directors receives from such person an executed confidentiality agreement with terms no less favorable to such party than those contained in the Confidentiality Agreement dated July 13, 2004 between the Company and Parent (the "Confidentiality Agreement"), and (5) prior to furnishing such non-public information or other entity providing access to the properties, books or group records of such party, such party has complied with the provisions of Section 6.01(b); or (other than MergercoB) complying with Rule 14e-2 or Rule 14a-9 promulgated under the Exchange Act with regard to an Acquisition Proposal; provided that, with respect to this clause (B), any Change of Recommendation is made in compliance with Section 6.01(e). Each party agrees that, in the event that it receives a Superior Proposal, for the three Business Day period commencing on the date on which it delivers notice of such Superior Proposal to the other party in accordance with Section 6.01(b), it shall offer to negotiate with, and cause its affiliates or representativesrespective financial and legal advisors to negotiate with, the other party to attempt to make such adjustments in the terms and conditions of this Agreement as would enable such party to proceed with the transactions contemplated herein.
(b) concerning The Company and Parent shall each notify the other party promptly after receipt (and in any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving event within one Business Day) by the Company or Parent (or their Representatives), as applicable, of any SubsidiaryAcquisition Proposal, division any discussions or operating negotiations that are reasonably likely to lead to an Acquisition Proposal, or principal business unit any request for nonpublic information or access to the properties, books or records of such party relating to or which could reasonably be expected to lead to an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the Company offeror and the terms and conditions of such proposal, inquiry or contact. Such party shall (an "i) continue to keep the other party hereto informed, on a prompt basis (and in any event within one Business Day) of the status of any material developments (including any changes or adjustments made to or proposed to be made to the terms of 32 any such Acquisition Proposal"). The Company , (ii) provide to the other party promptly (and in any event within one Business Day) after receipt or delivery thereof with copies of the Acquisition Proposal (including any amendments or supplements thereto) and all such other material and information provided in writing by the person making such Acquisition Proposal; provided that neither party shall be required to disclose its internal analyses relating to any such Acquisition Proposal, and (iii) provide to the other party a list of, and copies of, the information provided to the person making such inquiry, proposal, offer or request concurrently with delivery to such person and immediately provide the other party hereto with access to all information to which the person making such inquiry, proposal, offer or request was provided access (except for any such information previously provided to the other party).
(c) Each party will immediately cease any and cause to be terminated all existing activities, discussions or negotiations by it, its Subsidiaries and their Representatives with any parties person other than the other party hereto conducted heretofore with respect to any Acquisition Proposal. Each party also agrees, if it has not already done so, to promptly request each person, if any, that has heretofore executed a confidentiality agreement within 12 months prior to the date hereof in connection with any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such person by or on behalf of it or its Subsidiaries. Neither party shall agree to modify, amend or terminate, or waive, assign or release any material rights or claims, or grant any consent under, any confidentiality agreement relating to any Acquisition Proposal or otherwise under any standstill or similar agreement or fail to fully enforce any such agreement upon the request of the foregoing. Notwithstanding the foregoingother party hereto, provided, however, that either party may grant a consent or waiver under, or otherwise fail to enforce, such agreement in order to permit a person to make a private unsolicited Acquisition Proposal provided that such party has otherwise complied with this Section 6.01; and provided, further, that upon any grant of waiver or consent, the Company may furnish information concerning other party is promptly notified of such waiver or consent.
(d) Each party will take such action as is necessary to inform promptly its business, properties or assets to any 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 Representatives of the provisions of this Section 6.01.
(xe) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to Neither the Board of Directors of the Company relating to or Parent nor any such transaction which committee thereof shall (i) in the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders case of the Company, withdraw or modify in a manner adverse to Parent, or publicly propose to withdraw or modify in a manner adverse to Parent, the Company Recommendation, (ii) in the case of Parent, withdraw or modify in a manner adverse to the Company, or publicly propose to withdraw or modify in a manner adverse to the Company, the Parent Recommendation, (iii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Acquisition Proposal or (iv) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal. Notwithstanding the foregoing provisions of Section 6.01(a) and this Section 6.01(e), if, prior to receipt of the Company Stockholder Approval (in the case of the Company) or the Parent Stockholder Approval (in the case of Parent), (w) such party's Board of Directors shall have determined in good faith by affirmative vote of a majority of its members, after consultation with outside counsel, that the actions described in clauses (A) and/or (B) below are required for the purpose of fulfilling its fiduciary duties under applicable Law, (x) such party's Board of Directors has notified the other party in writing of the determination described in clause (w) above, (y) if at least three Business Days following receipt by the other party of the notice received in clause (x) above, and taking into account any revised proposal made by the other party since receipt of the notice referred to in clause (x) above, such party's Board of Directors of the Company determinesmaintains its determination described in clause (w) above, only after receipt of advice from independent legal counsel to the Company and firm(z) such party is in compliance with this Section 6.01, that the failure to provide such information or access or to engage in such discussions or negotiations would cause the party's Board of Directors to violate its fiduciary duties to may (A) in the case of the Company's shareholders under applicable law. The , withdraw or modify the Company shall immediately Recommendation or, in the case of Parent, withdraw or modify the Parent Recommendation (in any event within 24 hourseither case, a "Change of Recommendation") communicate to Mergerco the terms and/or (B) upon termination of any proposalthis Agreement in accordance with Section 8.01(i) or Section 8.01(j), discussionas applicable, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity concurrent payment of the termination fee in accordance with Section 8.03, approve and enter into an agreement relating to an Acquisition Transaction that constitutes a Superior Proposal. Nothing in this Section 6.01 will permit either party making such proposal to terminate this Agreement except as specifically provided in Article VIII or inquiry which it may receive in respect effect any other obligation of any such transactionthe parties under this Agreement.
Appears in 1 contract
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (and the a) The Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore Person with respect to a Takeover Proposal and shall seek to have returned to the Company any of confidential information that has been provided in any such activities, discussions or negotiations. From the foregoing. Notwithstanding the foregoingdate hereof, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its officers, 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, (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 furnish information concerning its businessreasonably be expected to lead to, properties any Takeover Proposal, (ii) conduct, participate, or assets engage in any discussions or negotiations regarding any Takeover Proposal, (iii) approve, endorse, recommend, make or authorize any public statement, recommendation or solicitation in support of any Takeover Proposal, (iv) approve any transaction (other than the transactions contemplated hereby) pursuant to which any corporationPerson other than Parent, partnershipMerger Sub or any Subsidiary of Parent would become an “interested stockholder” under, person Section 203 of the DGCL 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 entity similar agreement between the Company or group pursuant any of its Subsidiaries and any other Person (other than Parent, Merger Sub or any Subsidiary of Parent); provided, however, that following the receipt of a Superior Proposal or a proposal that could reasonably be expected to appropriate confidentiality agreementslead to a Superior Proposal made on or after the date hereof but prior to the Special Meeting, in circumstances not otherwise involving a breach of this Agreement, the Company may, in response to such proposal and may negotiate subject to compliance with Section 5.2(b) and participate in discussions and negotiations with 5.2(c), (A) request information from the Person making such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to for the purpose of the Board of Directors of the Company relating informing itself about the proposal that has been made and the Person that made it, (B) furnish information with respect to any the Company to the Person making such transaction which proposal pursuant to a confidentiality agreement, provided that (1) such confidentiality agreement contains substantially the Board of Directors determines same terms as (based upon the advice of independent investment bankers for or terms not materially less favorable to the Company) represents a superior transaction than those contained in the Confidentiality Agreement dated as of April 2, 2012, 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 Merger for the shareholders of the Companyrequesting Person, and (yC) if participate in negotiations with such Person regarding such 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 Company Stockholder 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 of Directors of the Company determinesnor any committee thereof shall, only after receipt 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 advice from independent legal counsel advisability, or recommendation by the Board of Directors 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 stockholders 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 of Directors of the Company in respect of the acceptance of any tender offer or exchange offer by its stockholders 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 stockholders 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, in the event that the Board of Directors of the Company determines in good faith, in response to a Superior Proposal that was unsolicited and firmmade 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, that the failure to provide such information or access or to engage in such discussions or negotiations do so would cause the Board of Directors to violate be inconsistent with its fiduciary duties to the Company's shareholders ’s stockholders under applicable law, the Board of Directors of the Company may, prior to Company Stockholder Approval and subject to compliance with all of the requirements of this Section 5.2(b) and to compliance with 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; provided, however, that any actions described in clause (xx) or (yy) may be taken only if the conditions of Section 5.2(c) are also met.
(c) The Company may take the actions described in Section 5.2(b)(xx) and (yy) only after (i) providing Parent prompt written notice advising Parent that the Board of Directors of the Company has received a Superior Proposal and the Company’s Board of Directors’ undertakes any of the actions described in either Section 5.2(b)(xx) or Section 5.2(b)(yy) with respect to such Superior Proposal, such notice also specifying 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 (ii) the Parent does not provide within five (5) Business Days of receipt of the written notice from the Company of such Superior Proposal an offer that the Company Board determines in good faith, after consultation with its outside counsel and financial advisor, is at least as favorable from a financial point of view to the Company’s stockholders. In the event Parent’s offer (as described in the preceding sentence) is determined by the Company to be at least as favorable from a financial point of view to the Company’s stockholders, 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 5.2(b), the Company shall promptly (and in no event later than one 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 material terms and conditions of such inquiry, indication of interest, request for confidential information or any Takeover Proposal, (v) the identity of the Person making such request or such Takeover Proposal (unless identifying the Person would violate an obligation of confidentiality), and (vi) any requests made by the Company for information about the Takeover Proposal or the Person that made it. The Company shall immediately (in any event within 24 hours) communicate keep Parent fully informed with respect to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect status of any such transactioninquiry, indication of interest, request for confidential information, Takeover Proposal, or any significant developments in respect thereof.
(e) Nothing contained in this Section 5.2 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 disclosure to the Company’s stockholders; provided, however, neither the Company nor its Board of Directors nor any committee thereof shall, except as in accordance with Section 5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination or recommendation or approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal.
(f) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Lecroy Corp)
No Solicitation. Neither (a) The Company has agreed that, in light of the Company nor any consideration given by its Board of its Subsidiaries or affiliates shall (and Directors prior to the execution of this Agreement to various alternatives to the transactions contemplated by this Agreement, the Company shall use its best efforts to cause its officersnot, directors, employees, representatives and agents, including, but not limited nor shall it permit any of the Company Subsidiaries to, investment bankersnor shall it authorize or permit any officer, attorneys and accountants, not to), directly director or indirectly, encourage, solicit, participate in or initiate discussions or negotiations withemployee of, or provide any information toinvestment banker, any corporation, partnership, person attorney or other entity advisor or group (other than Mergercorepresentative of, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company Subsidiaries to, (an "Acquisition i) solicit, initiate, or encourage the submission of, any Takeover Proposal"). The Company will immediately cease , (ii) enter into any existing activities, discussions or negotiations with any parties conducted heretofore agreement with respect to any of the foregoing. Notwithstanding the foregoingTakeover Proposal or (iii) participate in any discussions or negotiations regarding, the Company may or furnish information concerning its business, properties or assets to any corporationperson any information with respect to, partnershipor take any other action to facilitate any inquiries or the making of any proposal that constitutes, person or other entity or group pursuant may reasonably be expected to appropriate confidentiality agreementslead to, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal any Takeover Proposal; provided, however, that to the extent required by the fiduciary obligations of the Board of Directors of the Company relating to any such transaction which Company, as determined in good faith by a majority of the Board of Directors determines (disinterested members thereof based upon on the written advice of independent investment bankers for outside counsel, the CompanyCompany may, in response to an unsolicited request, take such actions permitted by Section 5.9(b) represents a superior transaction subject to all restrictions therein. Without limiting the Merger for the shareholders foregoing, it is understood that any violation of the Company, and (y) if restrictions set forth in the Board of Directors preceding sentence by any executive officer of the Company determinesor any of the Company Subsidiaries or any investment banker, only after receipt attorney or other advisor or representative of advice from independent legal counsel the Company or any of the Company Subsidiaries, whether or not such person is purporting to act on behalf of the Company or any of the Company Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.9(a) by the Company. For purposes of this Agreement, the term "Takeover Proposal" means any bona fide proposal or offer (whether or not in writing and whether or not delivered to the stockholders of the Company and firm, that generally) for a merger or other business combination involving the failure Company or any of the Company Subsidiaries or any proposal or offer 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 shareholders under applicable law. The Company shall immediately (acquire in any event within 24 hoursmanner, directly or indirectly, an equity interest (including any option to acquire an equity or voting interest and any convertible debt or other interest which may be converted into such an equity or voting interest) communicate to Mergerco the terms in, any voting securities of, or a substantial asset of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity any of the party making such proposal or inquiry which it may receive in respect of any such transactionCompany Subsidiaries, other than the transactions contemplated by this Agreement.
Appears in 1 contract
No Solicitation. Neither Until the Company nor any earlier of its Subsidiaries or affiliates (a) the Closing, and (b) the termination of this Agreement pursuant to Section 11.1, Sellers agree that they shall (not, and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives and agentsAffiliates, includingattorneys, but not limited toadvisors, investment accountants, bankers, attorneys agents and accountants, representatives not to), directly or indirectly: (a) solicit any proposal or offer from any Person (other than Buyer or one of its Affiliates) relating to any transaction or series of related transactions involving: (i) the disposition or acquisition of all or any material portion of the business or assets of the Fastener Subsidiaries; (ii) the sale, encourageissuance, solicitgrant, disposition or acquisition of (A) any capital stock or other equity security of a Fastener Subsidiary or (B) any option, call, warrant or right (whether or not immediately exercisable) to acquire, or any security, instrument or obligation that is or may become convertible into or exchangeable for, any capital stock or other equity security of a Fastener Subsidiary; (iii) any merger, consolidation, business combination, tender offer, share exchange, reorganization or similar transaction involving a Fastener Subsidiary, other than, in each case, the transactions contemplated by this Agreement; or (iv) any other transaction or financing which if consummated would have an adverse effect on Seller’s ability to perform its obligations under this Agreement (each of (i) through (iv) above, inclusive, an “Alternative Transaction”); (b) participate in or initiate any discussions or negotiations or enter into any agreement with, or provide any information to, any corporation, partnership, person or other entity or group Person (other than Mergerco, any Buyer or one of its affiliates or representativesAffiliates) concerning in connection with an Alternative Transaction to be made by such Person; provided that in response to any mergerunsolicited communications from a third party with respect to an Alternative Transaction, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or Sellers shall be permitted to inform such third party that Sellers are prohibited by this Agreement from participating in any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Alternative Transaction; or (c) accept any proposal or offer from any Person (other than Buyer or one of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (xAffiliates) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionan Alternative Transaction.
Appears in 1 contract
No Solicitation. Neither From and after the Company date of this Agreement through the Closing or termination of this Agreement in accordance with its terms, no Stockholder shall nor shall any Stockholder permit any of its Subsidiaries or affiliates shall Affiliates (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited without limitation, the Company) to, nor shall any Stockholder authorize or permit any investment bankersbanker, attorneys and accountantsattorney, not employee, director, officer or other advisor or representative of such Stockholder or any of his Affiliates to), directly or indirectly, encourage, (a) solicit, initiate or encourage the submission of any Investment Proposal (as defined below), (b) enter into any agreement or understanding with respect to any Investment Proposal or (c) participate in or initiate any discussions or negotiations withregarding, or provide furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any corporationInvestment Proposal. Without limiting the generality of the foregoing, partnershipit is understood that any violation of the restrictions set forth in the preceding sentence by any investment banker, person attorney, employee, director, officer or other entity advisor or group representative of a Stockholder or any of its affiliates, with the knowledge of such Stockholder but whether or not such Person is purporting to act on behalf of such Stockholder or otherwise, shall be deemed to be a breach of this covenant by such Stockholder. For the purposes of this Agreement, "Investment Proposal" means any proposal or offer (other than Mergerco, an offer by Purchaser or any of its affiliates or representativesaffiliates) concerning any for a merger, tender offerconsolidation, exchange offer, sale of assets, sale of shares of capital stock financing or debt securities or similar transactions other business combination involving the Company or any Subsidiaryproposal or offer (other than a proposal or offer by Purchaser or any of its affiliates) to acquire in any manner, division directly or operating indirectly, an interest in any securities of or principal business unit a substantial portion of the assets of the Company (an "Acquisition Proposal")or any of its Subsidiaries. The Company will immediately cease and Stockholders shall promptly notify Purchaser of any existing activities, discussions Investment Proposal or negotiations with any parties conducted heretofore with respect inquiry reasonably likely to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets lead to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreementsan Investment Proposal, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted shall promptly deliver a bona fide written proposal to the Board copy of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction written Investment Proposal or inquiry to the Merger for the shareholders of the CompanyPurchaser. The Stockholders agree not to, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to cause the Company and firmeach Subsidiary not to, that without the failure prior written consent of the Purchaser, release any Person from, or waive any provision of, any confidentiality or standstill agreement 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by which the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionSubsidiary is a party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Overseas Shipholding Group Inc)
No Solicitation. Neither (a) During the Company nor any of its Subsidiaries or affiliates shall (and Pre-Closing Period, the Company shall use not, and will take such action as is reasonably necessary to direct that its best efforts to cause its directors, officers, directors, employees, advisors and other authorized representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)do not, directly or indirectly, initiate or solicit, or knowingly facilitate or encourage, solicitany inquiries regarding, participate or the making or implementation of, any Acquisition Proposal. During the Pre-Closing Period, the Company shall notify Parent in writing promptly but in any AmericasActive:12666190.14 event within forty-eight (48) hours following the receipt of any Acquisition Proposal (which notice shall include the material terms thereof, except to the extent that the disclosure thereof would constitute a breach of any obligation of confidentiality of the Company with respect thereto).
(b) The Company will not, and will take such action as is reasonably necessary to direct that its directors, officers, advisors and other authorized representatives do not, directly or indirectly, (i) discuss, negotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any Acquisition Proposal, (ii) facilitate, encourage, solicit or initiate discussions discussions, negotiations or negotiations submissions of proposals or offers in respect of an Acquisition Proposal, (iii) furnish or cause to be furnished, to any Person or entity, any information concerning the business, operations, properties or assets of the Company in connection with an Acquisition Proposal, or (iv) otherwise cooperate in any way with, or provide assist or participate in, or facilitate, any information effort or attempt by any other Person or entity to do or seek any of the foregoing.
(c) The Company shall, and shall direct its directors, officers, advisors and other authorized representatives to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties persons or entities (other than Parent and Merger Sub) conducted heretofore with respect to any of the foregoing. Notwithstanding The Company agrees not to release any third party from the foregoing, confidentiality provisions of any agreement to which the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted is a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionparty.
Appears in 1 contract
Sources: Merger Agreement (Hub Group, Inc.)
No Solicitation. Neither the The Company nor shall not, and shall not authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), employees or agents to directly or indirectly, solicit, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than MergercoAcquisition, any of its affiliates or representatives) (collectively, a "Person") concerning any merger, consolidation, tender offer, exchange offer, sale of all or substantially all of the Company's assets, sale of shares of capital stock or debt securities or similar transactions business combination transaction involving the Company or any Subsidiary, division or principal operating or principal business unit of the Company or its Subsidiaries (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, (i) if the Company may or the Special Committee receives an unsolicited, written indication of a willingness to make an Acquisition Proposal at a price per share which the Special Committee reasonably concludes is in excess of the Tender Offer Price from any Person and if the Special Committee reasonably concludes, based upon advice of its financial advisor, that the Person delivering such indication is capable of consummating such an Acquisition Proposal (based upon, among other things, the availability of financing and the capacity to obtain financing, the expectation of receipt of required antitrust and other regulatory approvals and the identity and background of such Person), then the Company or the Special Committee may, directly or indirectly, provide access to or furnish or cause to be furnished information concerning its the Company's business, properties or assets to any corporation, partnership, person or other entity or group such Person pursuant to an appropriate confidentiality agreementsagreement and the Company or the Special Committee may engage in discussions related thereto, and (ii) the Company or the Special Committee may negotiate participate in and participate engage in discussions and negotiations with such entity or group concerning an any Person meeting the requirement set forth in clause (i) above in response to a written Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based Special Committee concludes, upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent its legal counsel to the Company and firmcounsel, that the failure to provide such information or access or to engage in such discussions or negotiations would cause be inconsistent with the Board Special Committee's (and the Board's) fiduciary duties to the Company's stockholders under applicable law. In the event that, after the Company has received a written Acquisition Proposal (without breaching its obligations under clause (i) or (ii) above) but prior to the purchase by Acquisition of Directors Common Stock pursuant to violate the Tender Offer, the Special Committee determines, in good faith and upon advice of its financial advisor and legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's shareholders stockholders under applicable law, the Special Committee may do any or all of the following: (x) withdraw or modify the Board of Directors' approval or recommendation of the Tender Offer, the Merger or this Agreement and (y) terminate this Agreement in the manner, and under the circumstances, set forth in Section 9.01(g). Furthermore, nothing contained in this Section 7.04 shall prohibit the Company or its Board of Directors, upon the recommendation of the Special Committee, from 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(a) promulgated under the Exchange Act or from making such disclosure to the Company's stockholders or otherwise which, in the judgment of the Special Committee upon advice of legal counsel, is necessary under applicable law or rules of any stock exchange. The Company shall immediately promptly (but in any event within 24 hourstwo days) communicate to Mergerco the terms advise Acquisition in writing of any proposalAcquisition Proposal or any inquiry regarding the making of an Acquisition Proposal including any request for information, discussionthe material terms and conditions of such request, negotiation Acquisition Proposal or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party Person making such proposal request, Acquisition Proposal or inquiry which it may receive in respect inquiry. The Company will, to the extent reasonably practicable, keep Acquisition fully informed of the status and details (including amendments or proposed amendments) of any such transactionrequest, Acquisition Proposal or inquiry. So long as the River Acquisition Agreement remains in effect, nothing contained in this Agreement shall prohibit or limit the rights and obligations of the Company to take such actions as may be required by the River Acquisition Agreement as it is in effect at the date of this Agreement and such actions shall not constitute a breach under this Agreement.
Appears in 1 contract
No Solicitation. Neither the Company nor any of its Subsidiaries or affiliates shall (and the a) The Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore Person with respect to a Takeover Proposal and shall seek to have returned to the Company any of confidential information that has been provided in any such activities, discussions or negotiations. From the foregoing. Notwithstanding the foregoingdate hereof, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its officers, 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, (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 furnish information concerning its businessreasonably be expected to lead to, properties any Takeover Proposal, (ii) conduct, participate, or assets engage in any discussions or negotiations regarding any Takeover Proposal, (iii) approve, endorse, recommend, make or authorize any public statement, recommendation or solicitation in support of any Takeover Proposal, (iv) approve any transaction (other than the transactions contemplated hereby) pursuant to which any corporationPerson other than Parent, partnershipMerger Sub or any Subsidiary of Parent would become an “interested stockholder” under, person Section 203 of the DGCL 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 entity similar agreement between the Company or group pursuant any of its Subsidiaries and any other Person (other than Parent, Merger Sub or any Subsidiary of Parent); provided, however, that following the receipt of a Superior Proposal or a proposal that could reasonably be expected to appropriate confidentiality agreementslead to a Superior Proposal made on or after the date hereof but prior to the Special Meeting, in circumstances not otherwise involving a breach of this Agreement, the Company may, in response to such proposal and may negotiate subject to compliance with Section 5.2(b) and participate in discussions and negotiations with 5.2(c), (A) request information from the Person making such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to for the purpose of the Board of Directors of the Company relating informing itself about the proposal that has been made and the Person that made it, (B) furnish information with respect to any the Company to the Person making such transaction which proposal pursuant to a confidentiality agreement, provided that (1) such confidentiality agreement contains substantially the Board of Directors determines same terms as (based upon the advice of independent investment bankers for or terms not materially less favorable to the Company) represents a superior transaction than those contained in the Confidentiality Agreement dated as of April 2, 2012, 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 Merger for the shareholders of the Companyrequesting Person, and (yC) if participate in negotiations with such Person regarding such 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 Company Stockholder 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 of Directors of the Company determinesnor any committee thereof shall, only after receipt 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 advice from independent legal counsel advisability, or recommendation by the Board of Directors 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 stockholders 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 of Directors of the Company in respect of the acceptance of any tender offer or exchange offer by its stockholders 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 stockholders 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, in the event that the Board of Directors of the Company determines in good faith, in response to a Superior Proposal that was unsolicited and firmmade 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, that the failure to provide such information or access or to engage in such discussions or negotiations do so would cause the Board of Directors to violate be inconsistent with its fiduciary duties to the Company's shareholders ’s stockholders under applicable law, the Board of Directors of the Company may, prior to Company Stockholder Approval and subject to compliance with all of the requirements of this Section 5.2(b) and to compliance with 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; provided, however, that any actions described in clause (xx) or (yy) may be taken only if the conditions of Section 5.2(c) are also met.
(c) The Company may take the actions described in Section 5.2(b)(xx) and (yy) only after (i) providing Parent prompt written notice advising Parent that the Board of Directors of the Company has received a Superior Proposal and the Company’s Board of Directors’ undertakes any of the actions described in either Section 5.2(b)(xx) or Section 5.2(b)(yy) with respect to such Superior Proposal, such notice also specifying 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 (ii) the Parent does not provide within five (5) Business Days of receipt of the written notice from the Company of such Superior Proposal an offer that the Company Board determines in good faith, after consultation with its outside counsel and financial advisor, is at least as favorable from a financial point of view to the Company’s stockholders. In the event Parent’s offer (as described in the preceding sentence) is determined by the Company to be at least as favorable from a financial point of view to the Company’s stockholders, 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 5.2(b), the Company shall promptly (and in no event later than one 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 material terms and conditions of such inquiry, indication of interest, request for confidential information or any Takeover Proposal, (v) the identity of the Person making such request or such Takeover Proposal (unless identifying the Person would violate an obligation of confidentiality), and (vi) any requests made by the Company for information about the Takeover Proposal or the Person that made it. The Company shall immediately (in any event within 24 hours) communicate keep Parent fully informed with respect to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect status of any such transactioninquiry, indication of interest, request for confidential information, Takeover Proposal, or any significant developments in respect thereof.
(e) Nothing contained in this Section 5.2 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 disclosure to the Company’s stockholders; provided, however, neither the Company nor its Board of Directors nor any committee thereof shall, except as in accordance with Section 5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination or recommendation or approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal.
(f) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. Neither (a) From and after the Company nor date hereof, unless this Agreement has been terminated pursuant to and in accordance with Article VIII hereof, none of Sellers or any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives and stockholders, representatives, agents, includingor anyone acting on behalf of them, but not limited to, investment bankers, attorneys and accountants, not to)shall, directly or indirectly, (i) encourage, solicit, participate engage in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group Person (other than Mergerco, any of Buyer or its affiliates or representativesRepresentatives) concerning any mergerof the Subject Interests or the BPL Entities or BGH Entities, tender offer(ii) accept any offer or respond to any indications of interest from any Person concerning any of the Subject Interests, exchange offer(iii) enter into an agreement, arrangement or understanding with any Person other than the Buyer or its Affiliates concerning any of the Subject Interests or (iv) make or authorize any statement, recommendation or solicitation in support of or concerning or otherwise facilitate any purchase or sale of assets, sale of shares of capital stock or debt securities or similar transactions transaction involving the Company or any Subsidiary, division or operating or principal business unit of the Company Subject Interests; provided, however, that this Section 5.10 shall in no way prohibit any member of the board of directors of (an "Acquisition Proposal"). The Company will immediately cease x) MainLine, in its capacity as the general partner of BGH or (y) Buckeye GP, in its capacity as the general partner of BPL, from taking any existing activitiesaction required by his or her fiduciary duty.
(b) During the period commencing on the date of this Agreement and continuing until the Termination Date, discussions or negotiations with any parties conducted heretofore at every meeting of limited partners of BGH called with respect to any of the foregoingfollowing, and at every adjournment or postponement thereof, and on every action or approval by written consent of limited partners of BGH with respect to any of the following, each Seller shall vote, to the extent not voted by the Person(s) appointed as proxies under Section 5.10(c), or shall cause the record holder of any Subject Interests on the applicable record date to appear (in Person or by proxy) and vote the Subject Interests entitled to vote thereon:
(i) against approval of any proposal made in opposition to, or in competition with, consummation of the transactions contemplated by this Agreement; and
(ii) except as otherwise agreed to in writing in advance by Buyer, against any merger of or sale of assets by any of the BGH Entities or BPL Entities or any action, proposal, transaction or agreement that would compete with or serve to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the transactions contemplated by this Agreement.
(c) Each Seller hereby irrevocably and unconditionally revokes any and all previous proxies granted with respect to the Subject Interests. By entering into this Agreement, each Seller hereby irrevocably and unconditionally grants a proxy appointing ▇▇▇▇ ▇▇▇▇▇▇ of Buyer as such Seller’s attorneys-in-fact and proxies, with full power of substitution, for and in such Seller’s name, to vote, express, consent or dissent, or otherwise to utilize such voting power solely as specifically set forth in Section 5.10(b) as to the matters specified in Section 5.10(b). The proxy granted by each Seller pursuant to this Section 5.10(c) is coupled with an interest and is irrevocable and is granted to secure the voting agreement set forth above in consideration of Buyer entering into this Agreement and incurring certain related fees and expenses. Notwithstanding the foregoing, the Company may furnish information concerning proxy granted by each Seller shall be revoked upon termination of this Agreement in accordance with its businessterms. Subject to the immediately preceding sentence, properties or assets such irrevocable proxy is executed and intended to any corporationbe irrevocable.
(d) In the event that Buyer, partnership, person or other entity or group pursuant to appropriate confidentiality agreementsthe voting agreement granted in Section 5.10(b) or the proxy granted in Section 5.10(c), elects to vote in favor of any matter specified in Section 5.10(b), then Buyer and may negotiate and participate Seller shall share equally in discussions and negotiations the Profits associated with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors transaction regardless of the Company relating to any such transaction which the Board termination of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionthis Agreement.
Appears in 1 contract
No Solicitation. Neither From and after the Company date hereof until the termination of this Agreement, neither FSSB, nor any FSSB Subsidiary, nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives representatives, agents and agents, Affiliates (including, but not limited towithout limitation, any investment bankersbanker, attorneys and accountantsattorney or accountant retained by FSSB or any of the FSSB Subsidiaries), not to)will, directly or indirectly, encourageinitiate, solicitsolicit or knowingly encourage (including by way of furnishing non-public information or assistance) any inquiries or the making of any proposal that constitutes, participate or may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any Person in furtherance of such inquiries or initiate 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 retained by any of its Subsidiaries to take any such action, and FSSB shall notify Farmers orally (within one business day) and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which it or any of its Subsidiaries or any such officer, director or employee, or, to FSSB's Knowledge, investment banker, financial advisor, attorney, accountant or other representative of FSSB may receive relating to any of such matters, provided, however, that nothing contained in this Section 6.10 shall prohibit the Board of Directors of FSSB from (i) complying with its disclosure obligations under federal or state law; or (ii) furnishing information to, or entering into discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (that makes an "unsolicited Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreementsif, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal only to the extent that, (xA) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors FSSB determines in good faith (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders after consultation with its financial and legal advisors), taking into account all legal, financial and regulatory aspects of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Ibt Bancorp Inc /Mi/)
No Solicitation. Neither the Company nor (a) None of North Fork, its Subsidiaries or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of North Fork or any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectlyindirectly (i) solicit, initiate, encourage, solicit, participate in facilitate (including by way of furnishing information) or initiate discussions take any other action designed to facilitate any inquiries or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning proposals regarding any merger, tender offershare exchange, exchange offerconsolidation, sale of assets, sale of shares of capital stock or debt securities (including, without limitation, by way of a tender offer) or similar transactions involving the Company North Fork or any Subsidiaryof its Subsidiaries that, division or operating or principal business unit if consummated, would constitute a North Fork Alternative Transaction (any of the Company (an "Acquisition Proposal"). The Company will immediately cease foregoing inquiries or proposals, including the indication of any existing activities, discussions or negotiations with any parties conducted heretofore with respect intention to propose any of the foregoing, being referred to herein as a “North Fork Alternative Proposal”), (ii) participate in any discussions or negotiations regarding a North Fork Alternative Transaction or (iii) enter into any agreement regarding any North Fork Alternative Transaction. Notwithstanding the foregoing, the Company may furnish information concerning its businessBoard of Directors of North Fork shall be permitted, properties or assets prior to any corporation, partnership, person or other entity or group the meeting of North Fork stockholders to be held pursuant to appropriate confidentiality agreementsSection 6.3, and may negotiate subject to compliance with the other terms of this Section 6.11 and to first entering into an agreement with the person proposing such North Fork Alternative Proposal on terms substantially similar to, and no less favorable to North Fork than, those contained in the Confidentiality Agreement, to consider and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted respect to a bona fide written proposal North Fork Alternative Proposal received by North Fork, if and only to the extent that the Board of Directors of the Company relating to any such transaction which the Board of Directors North Fork reasonably determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only in good faith after receipt of advice from independent consultation with outside legal counsel to the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations do so would cause the Board of Directors it to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionduties.
Appears in 1 contract
No Solicitation. Neither the Company nor any of (a) ▇▇▇▇▇▇ and its Subsidiaries shall immediately cease, and shall cause their respective officers, directors, employees, investment bankers, attorneys, accountants and other representatives to cease, any discussions or affiliates shall negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as defined herein). From the date hereof until the Effective Time or the termination of this Agreement, ▇▇▇▇▇▇ and the Company its Subsidiaries shall, and shall use its best reasonable efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys attorneys, accountants and accountants, other representatives not to), directly or indirectly, encourage, solicit, participate in (i) solicit or initiate discussions knowingly encourage the initiation of (including by way of furnishing information that has not been previously publicly disseminated) any inquiries or negotiations withproposals that constitute, or provide any information may reasonably be expected to lead to, any corporationTakeover Proposal, partnershipor (ii) participate in any discussions regarding, or furnish to any person any non-public information with respect to, or other entity assist or group facilitate any Takeover Proposal; provided, however, that if, prior to the Effective Time and following the receipt of a Takeover Proposal, the board of directors of ▇▇▇▇▇▇ or a committee thereof determines in good faith, after considering applicable provisions of state law and after consultation with outside counsel, that (other than Mergerco, any i) a failure to do so would constitute a breach by it of its affiliates fiduciary duties to its stockholders under applicable law and (ii) the Takeover Proposal is or representativesis reasonably likely to result in a Superior Proposal (as defined herein), ▇▇▇▇▇▇ may, in response to such Takeover Proposal and subject to compliance with Section 6.7(b): (x) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore furnish nonpublic information with respect to any of ▇▇▇▇▇▇ and its Subsidiaries to the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group party making such Takeover Proposal pursuant to appropriate a customary confidentiality agreementsagreement (but no less favorable to ▇▇▇▇▇▇ than the confidentiality agreement entered into with Evita) provided that (i) such confidentiality agreement must include a provision prohibiting solicitation of key employees of ▇▇▇▇▇▇ or its Subsidiaries, such provision lasting until the earlier of (A) at least one year or (B) the consummation of a transaction, and may not include any provision calling for an exclusive right to negotiate with ▇▇▇▇▇▇ and participate in discussions and negotiations with (ii) ▇▇▇▇▇▇ advises Evita of all such entity or group concerning an Acquisition Proposal (x) if nonpublic information delivered to such entity or group has on an unsolicited basis submitted a bona fide written proposal person promptly following its delivery to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Companyrequesting party, and (y) if participate in negotiations with such party regarding such Takeover Proposal; and (z) prior to the Board of Directors of the Company determinesEffective Date, only after withdraw or modify its recommendation referred to in Section 3.8(c) following receipt of advice an unsolicited, bona fide Takeover Proposal from independent legal counsel a third party which is a Superior Proposal or enter into an agreement with such third party and terminate this Agreement pursuant to Section 8.1(e) hereof.
(b) In addition to the Company obligations of ▇▇▇▇▇▇ set forth in paragraph (a) of this Section 6.7, and firm, that the failure subject 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any confidentiality agreement signed prior to the date hereof, ▇▇▇▇▇▇ shall promptly advise Evita orally and in writing, and in no event later than 48 hours after receipt, if any proposal, discussionoffer, negotiation inquiry, or inquiry (other contact is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, ▇▇▇▇▇▇ in respect of any Takeover Proposal, and will disclose shall, in any written materials received by the Company in connection with such proposalnotice to Evita, discussion, negotiation or inquiry) and indicate the identity of the party person making such proposal proposal, offer, inquiry, or inquiry which it may receive in respect other contact and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Evita informed, on a reasonably current basis, of all material developments affecting the status and terms of any such transactionproposals or offers or the status of any such discussions or negotiations. ▇▇▇▇▇▇ shall not release any person from, or waive any material provision of, any confidentiality or standstill agreement entered into as of the date of this Agreement.
(c) For purposes of this Agreement,
Appears in 1 contract
Sources: Merger Agreement (Maxworldwide Inc)
No Solicitation. Neither (a) On the date hereof the Company will instruct and cause the Company’s directors, officers, employees, investment bankers, financial advisors, attorneys, accountants and other representatives (collectively, “Agents”), its Subsidiaries and their respective Agents to immediately cease all discussions and negotiations with any Persons that may be ongoing with respect to a Takeover Proposal, and deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Takeover Proposal and such notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries.
(b) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ Agents to (i) solicit, initiate or knowingly encourage or facilitate any inquiries or the making of any proposal or offer that constitutes, or may reasonably be likely to lead to, any Takeover Proposal (which, for the purposes of this subclause and subclause (ii) shall not include providing information to a member of the Board in his capacity as a director), (ii) provide any non-public information, or afford access to the properties, books, records, or personnel of the Company or any of its Subsidiaries, to any Person that the Company has reason to believe is considering making, or has made, any Takeover Proposal, (iii) enter into or maintain or continue discussions or negotiate with any Person in furtherance of such inquiries or to obtain a Takeover Proposal or otherwise in connection with any Takeover Proposal, (iv) approve, endorse, recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to a Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into pursuant to Section 4.02(c)) (an “Acquisition Agreement”) or any proposal or offer that could reasonably be expected to lead to a Takeover Proposal, or that contradicts this Agreement or requires the Company to abandon this Agreement, (v) grant any waiver, amendment or release under any standstill agreement, any confidentiality agreement with a party having stated an interest in making a Takeover Proposal, or any Takeover Statutes, or (vi) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Agents to take any such action.
(c) Notwithstanding anything to the contrary in Section 4.02(a), if, prior to obtaining the Stockholder Approval the Board receives a bona fide written Takeover Proposal from any Person, which Takeover Proposal did not result from any breach of this Section 4.02 by the Company or its Agents, then the Company may, pursuant to a confidentiality agreement with provisions relating to confidentiality that are no less favorable to the Company than the provisions of the Confidentiality Agreement (it being understood that such confidentiality agreement shall contain provisions that expressly permit the Company to comply with the terms of this Agreement, including Section 4.02 hereunder) (an “Acceptable Confidentiality Agreement”), furnish non-public information to the Person making such Takeover Proposal, provided that such information either has been provided to Parent or is promptly (and in any event within 24 hours of furnishing such information) provided to Parent, and, following the execution of such Acceptable Confidentiality Agreement, afford access to the properties, books, records, and personnel of the Company or any of its Subsidiaries to, and enter into discussions or negotiations with, such Person in connection with a Takeover Proposal, provided, however, that prior to taking any of the foregoing actions, (i) the Board has determined in good faith (after consultation with its financial and legal advisors and after taking into consideration any revised offers or proposals submitted by Parent) that such Takeover Proposal is, or could reasonably be likely to lead to the delivery of, a Superior Proposal, and (ii) the Board has determined in good faith (after consultation with its legal advisors) that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law.
(d) The Company will notify Parent promptly (but in no event later than 48 hours) after receipt by the Company or its Subsidiaries (or any of their respective Agents) of any Takeover Proposal or any request (other than in the ordinary course of business and not related to a Takeover Proposal) for non-public information relating to the Company or any of its Subsidiaries or affiliates shall (and for access to the Company shall use its best efforts to cause its officersproperties, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations withbooks, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any records of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiaryof its Subsidiaries by any Person who the Company knows to be considering making, division or operating has made, a Takeover Proposal. In such notice, the Company shall identify the material terms of any such Takeover Proposal or principal business unit request, including identifying the party making such Takeover Proposal and include copies of all relevant documents or communications provided to the Company by such party that relate to the terms of the Takeover Proposal or request. The Company will keep Parent reasonably informed, on a prompt basis, of the status of any such Takeover Proposal or request (an "Acquisition Proposal"including the material terms and conditions thereof and any modifications thereto). The Company will immediately cease shall provide Parent with at least 48 hours prior notice of any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any meeting of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction at which the Board is reasonably expected to consider any Takeover Proposal.
(e) For purposes of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.this Agreement:
Appears in 1 contract
No Solicitation. Neither the (a) The Company shall not, nor shall it permit any of its Subsidiaries subsidiaries to, or affiliates shall (and authorize or permit any director, officer or employee of the Company shall use or any of its best efforts to cause subsidiaries or any investment banker, attorney, accountant or other advisor or representa tive of the Company or any of its officerssubsidiaries (collectively, directors, employees, representatives and agents, including, but not limited the "Representatives") to, investment bankers, attorneys and accountants, not to), directly or indirectly, (i) solicit, initiate or encourage, solicitor take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in or initiate any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, or provide any information toTakeover Proposal, any corporation, partnership, person or other entity or group (in each case other than Mergercoa Takeover Proposal made by the Parents; provided, however, that, at any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving time prior to obtaining the Company or any SubsidiaryStockholder Approval, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating may, in response to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if bona fide written Takeover Proposal that the Board of Directors of the Company determinesdetermines in good faith constitutes or could reasonably be expected to lead to a Takeover Proposal that is more favorable to the stockholders of the Company (taking into account the person making the Takeover Proposal, only after receipt the consideration offered, the likelihood of advice consummation (including the legal, financial and regulatory aspects of the Takeover Proposal) as well as any other factors deemed relevant by the Board of Directors of the Company) than this Agreement (a "Competitive Proposal"), and which was unsolicited and did not otherwise result from independent legal counsel a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and firmits subsidiaries to the person making such Competitive Proposal (and its representatives) pursuant to a customary confidentiality agreement (which confidentiality agreement contains terms that are equivalent to, and in no respect less favorable to the Company than, the terms of the Confidentiality Agreement dated June 2, 2000, between New York Sub and the Company (as it may be amended from time to time, the "Confidentiality Agreement")), provided that the failure to provide all such information is provided on a prior or access or substantially concurrent basis to engage the Parents, and (y) participate in such discussions or negotiations would cause with the Board person making such Competitive Proposal (and its representatives) regarding such Competitive Proposal. As of Directors the date of this Agreement, the Company has, and has caused each of its subsidiaries and each of the Representatives to violate its fiduciary duties have, (i) terminated all discussions or negotiations with all third parties regarding any Takeover Proposal and (ii) requested the prompt return of all confidential information relating to the Company's shareholders under applicable law. The Company shall immediately (in or any event within 24 hours) communicate of its subsidiaries previously furnished to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionthird parties.
Appears in 1 contract
Sources: Merger Agreement (Bestfoods)
No Solicitation. Neither (a) Except as otherwise provided in this Section 6.4(a), from and after the Company date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, Target and its subsidiaries will not, nor will they authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employeesaffiliates or employees or any investment banker, representatives and agents, including, but not limited attorney or other advisor or representative retained by any of them to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, indirectly (A) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below), (B) participate in or initiate any discussions or negotiations withregarding, or provide 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 corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, (C) engage in discussions or negotiations with any parties conducted heretofore person with respect to any Acquisition Proposal, except as to the existence of these provisions, (D) subject to Section 6.2(c), approve, endorse or recommend any Acquisition Proposal or (E) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction (as defined below); provided, however, until the date on which this Agreement is approved by the required vote of the foregoing. Notwithstanding the foregoingTarget Shareholders, the Company may furnish this Section 6.4(a) shall not prohibit Target from furnishing nonpublic information concerning regarding Target and its businesssubsidiaries to, properties entering into a confidentiality agreement with or assets to entering into discussions with, any corporation, partnership, person or other entity group in response to a Superior Offer submitted by such person 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 (xnot withdrawn) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to (1) neither Target nor any representative of Target and its subsidiaries shall have violated any of the restrictions set forth in this Section 6.4(a), (2) the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the CompanyTarget concludes in good faith, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent consultation with its outside legal counsel to the Company and firmcounsel, that the failure to provide such information or access or to engage action is required in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.order
Appears in 1 contract
Sources: Merger Agreement (Avocent Corp)
No Solicitation. Neither the Company nor any of its Subsidiaries Subject to Section 6.18:
(a) each Shareholder agrees that he or affiliates she shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)not, directly or indirectly, encourage(i) initiate, solicitsolicit or 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 or initiate any discussions or negotiations with, or provide furnish or disclose any non-public information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving relating to the Company or any Subsidiaryof its Subsidiaries to, division or operating otherwise cooperate with or principal business unit assist, any Person in connection with a Takeover Proposal, (iii) approve, endorse or recommend any Takeover Proposal, (iv) enter into any letter of the Company intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other agreement or arrangement relating to a Takeover Proposal, or (an "Acquisition Proposal"). The Company will immediately cease any existing activitiesv) resolve, discussions propose or negotiations with any parties conducted heretofore with respect agree to do any of the foregoing. Notwithstanding the foregoing; and
(b) if, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal prior to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents Expiration Time, a superior transaction Shareholder receives a proposal with respect to the Merger for sale of Shares in connection with an Takeover Proposal, then such Shareholder shall notify the shareholders of the Company, Purchaser Parties promptly (and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hoursone Business Day) communicate upon receipt of (i) any Takeover Proposal, (ii) any request for non-public information relating to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company or any of its Subsidiaries other than requests for information in connection with such proposalthe ordinary course of business and unrelated to a Takeover Proposal, discussionor (iii) any inquiry or request for discussions or negotiations regarding any Takeover Proposal, negotiation or inquiry) and including in each case the identity of such Person and a copy of such Takeover Proposal, indication, inquiry or request (or, where no such copy is available, a written description of the party making material terms and conditions of such proposal Takeover Proposal, indication, inquiry or inquiry which it may receive request), including any material modifications thereto. For the avoidance of doubt, the fact that the Company Board (or any committee thereof) shall determine that a Takeover Proposal is a Superior Proposal shall in respect no way affect or limit the obligations of any such transactionof the Shareholders, in their capacity as such, under this Agreement, including Section 2.1 and this Section 4.4.
Appears in 1 contract
Sources: Support Agreement (Quipp Inc)
No Solicitation. (a) Neither the Company nor Parent shall, nor shall either permit its respective Subsidiaries to, or authorize any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its Subsidiaries' officers, directors, employees, representatives and agentsaccountants, including, but not limited tocounsel, investment bankers, attorneys financial advisors and accountantsother representatives ("Representatives") to, not to), (i) directly or indirectly, initiate, solicit or encourage, solicitor take any action to facilitate the making of, any Takeover Proposal (defined below), or (ii) directly or indirectly engage in negotiations with or provide any confidential information or data to any person relating to any Takeover Proposal; provided, however, that at any time prior to the date of the stockholders' meetings contemplated by Section 6.1 (the "Applicable Period"), the Company or Parent, as applicable, 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 5.3(a), and subject to providing prior written notice of its decision to take such action to the other party (the "Notice") and compliance with Section 5.3(c), following delivery of the Notice (x) furnish information with respect to the Company or Parent, as applicable, 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 or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group regarding such Superior Proposal.
(other than Mergerco, any of its affiliates or representativesb) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to Neither the Board of Directors of the Company relating to nor any such transaction which committee thereof, nor the Board of Directors determines of Parent nor any committee thereof, shall (based upon x) unless such Board or committee shall have determined in good faith that adverse developments affecting the advice of independent investment bankers for other party have caused the Company) represents a superior transaction Merger to be contrary to the Merger for best interests of its stockholders, withdraw or modify, or propose to withdraw or modify, in a manner adverse to the shareholders other party, such Board of Directors' approval or recommendation, in the case of the Company, and of the Merger or this Agreement and, in the case of Parent, of the Parent Stock Issuance, (y) approve any letter of intent, 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 5.3(a)) relating to any 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 or Parent, as applicable, and which did not otherwise result from a breach of Section 5.3(a), the Board of Directors of the Company, or the Board of Directors of Parent, as applicable, may (subject to this sentence) terminate this Agreement and concurrently with or after such termination, if it so chooses, cause the Company or Parent, as applicable, to enter into any Acquisition Agreement with respect to any Superior Proposal, but only at a time that is during the Applicable Period and is after the fifth business day following the party's delivery of written notice advising the other party that the Board of Directors of the Company, or the Board of Directors of Parent, as applicable, 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) Each party promptly shall advise the other party 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. Such party shall keep the other party fully informed of the status and material terms of any such Takeover Proposal or inquiry.
(d) The Company and Parent shall each immediately cease and cause to be terminated all existing discussions and negotiations, if any, with any other persons conducted heretofore with respect to any Takeover Proposal. For purposes of this Agreement, a "Takeover Proposal" with respect to the Company or Parent, as applicable, means any inquiry, proposal or offer from any person relating to (i) any direct or indirect acquisition or purchase of a business that constitutes 25% or more of the net revenues, net income or assets of the Company or Parent, as applicable, and its Subsidiaries, taken as a whole, or 25% or more of the common stock or voting power (or of securities or rights convertible into or exercisable for such common stock or voting power) of the Company or Parent, as applicable, (ii) any tender offer or exchange offer that if consummated would result in any person beneficially owning 25% or more of the common stock or voting power (or of securities or rights convertible into or exercisable for such common stock or voting power) of the Company or Parent, as applicable, or (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as applicable, or any of its Subsidiaries that constitutes 25% or more of the net revenues, net income or assets of the Company or Parent, as applicable, and its Subsidiaries taken as a whole, in each case other than the transactions contemplated by this Agreement, the Stock Option Agreements or transactions permitted under Sections 5.1 or 5.2, as applicable. Each of the transactions referred to in clauses (i) - (iii) of the foregoing definition of Takeover Proposal, other than the transactions contemplated by this Agreement or by the Stock Option Agreements and transactions permitted under Sections 5.1 or 5.2, as applicable, is referred to herein as an "Acquisition Transaction." For purposes of this Agreement, a "Superior Proposal" with respect to the Company or Parent, as applicable, means any proposal made by a third party to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction, for consideration consisting of cash and/or securities, more than 50% of the combined voting power of the shares of Company Common Stock or Parent Common Stock, as applicable, then outstanding or at least 50% of the assets of the Company or Parent, as applicable, and its Subsidiaries, taken together, and if (x) the proposal is otherwise on terms which the Board of Directors of the Company determinesor Parent, only after receipt as applicable, determines in its good faith judgment (based on the advice of advice from independent legal counsel to the Company a financial advisor of nationally recognized reputation and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause other matters as the Board of Directors of the Company or Parent, as applicable, deems relevant) to violate be more favorable to the Company's stockholders or Parent's stockholders, as applicable, than the Merger and for which financing, to the extent required, is then committed or which, in the good faith judgment of the Board of Directors of the Company or Parent, as applicable, is reasonably capable of being obtained by such third party and (y) such Board of Directors, after considering such matters as such Board of Directors deems relevant (including the advice of outside counsel), determines in good faith that, in the case of the Company and Parent, furnishing information to the third party, participating in discussions or negotiations with respect to the Superior Proposal or withdrawing or modifying its recommendation with respect to the Merger (in the case of the Company) or the Parent Stock Issuance (in the case of Parent) or recommending a Takeover Proposal, or terminating this Agreement, is required for the Board of Directors of the Company or Parent, as applicable, to comply with its fiduciary duties to the Company's shareholders Company or Parent, as applicable, and its stockholders under applicable law. The Company .
(e) Nothing contained in this Agreement shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by prohibit the Company in connection with such proposal, discussion, negotiation or inquiry) Parent or their respective Boards of Directors from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2 promulgated under the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionExchange Act.
Appears in 1 contract
No Solicitation. Neither the (a) The Company shall not, nor shall it authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directorsdirectors or employees or any investment banker, employees, representatives and agents, including, but not limited attorney or other advisor or representative retained by it to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, (i) solicit, initiate or encourage the submission of any Takeover Proposal (as hereinafter defined) or (ii) participate in or initiate any discussions or negotiations withregarding, or provide furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any corporationTakeover Proposal; provided, partnershiphowever, person or other entity or group (other than Mergercothat if, at any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit time prior to receipt of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to Stockholder Approval the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Companyin good faith, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firmconsultation with outside counsel, that the failure to provide such information or access or to engage in such discussions or negotiations do so would cause the Board create a substantial risk of Directors to violate liability for breach of its fiduciary duties to the Company's shareholders stockholders under applicable law, the Company may, in response to a Takeover Proposal that was unsolicited or that did not otherwise result from a breach of this Section 4.02(a), and subject to compliance with Section 4.02(c), (x) furnish information with respect to the Company to any person pursuant to a customary and reasonable confidentiality agreement and (y) participate in negotiations regarding such Takeover Proposal. The Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer, director or employee of the Company or any investment banker, attorney or other advisor or representative of the Company, acting on behalf of the Company, shall immediately be deemed to be a breach of this Section 4.02(a) by the Company. For purposes of this Agreement, "Takeover Proposal" means any proposal or offer from any person relating to any direct or indirect acquisition or purchase of a substantial amount of assets of the Company (other than products of the Company) or more than a 20% interest in the total voting securities of the Company or any tender offer or exchange offer that if consummated would result in any event within 24 hours) communicate to Mergerco the terms person beneficially owning 20% or more of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by class of equity securities of the Company in connection with such proposalor any merger, discussionconsolidation, negotiation business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or inquiry) and similar transaction involving the identity of Company, other than the party making such proposal transactions contemplated by this Agreement, the Option Agreement or inquiry which it may receive in respect of any such transactionthe Stockholder Agreement.
Appears in 1 contract
Sources: Merger Agreement (Johnson & Johnson)
No Solicitation. Neither The Stockholder shall not, nor shall the Company nor Stockholder authorize or permit any of its Subsidiaries Affiliates or affiliates shall (and the Company shall use any of its best efforts to cause its directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountantsfinancial advisors, not attorneys, accountants or other advisors or representatives (collectively, “Representatives”) to), directly or indirectly, encourage(i) initiate, solicit, knowingly facilitate or knowingly encourage any inquiry or the making of any proposal that constitutes or could reasonably be expected to lead to a Company Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding or other agreement, arrangement or understanding relating to, or that could reasonably be expected to lead to, a Company Takeover Proposal, or (iii) continue or otherwise participate in or initiate any discussions or negotiations withregarding, furnish to any Person any information or data with respect to, or provide otherwise cooperate with or take any information other action to knowingly facilitate any proposal that (A) constitutes, or could reasonably be expected to lead to, any corporationa Company Takeover Proposal or (B) requires that the Company abandon, partnership, person terminate or other entity fail to consummate the Offer or group (other than Mergerco, any the Transactions. The Stockholder and each of its affiliates or representativesAffiliates and Representatives shall (i) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties Persons or their Representatives conducted heretofore prior to the date of this Agreement with respect to any Company Takeover Proposal and (ii) use its reasonable best efforts promptly to inform its Representatives of the foregoingobligations undertaken in this Section 1.03. Notwithstanding Without limiting the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors violation of the Company relating restrictions set forth in this Section 1.03 by any Representative of a Stockholder or any of its Affiliates, whether or not such Person is purporting to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders act on behalf of the CompanyStockholder or any of its Affiliates, and (y) if the Board shall be deemed to be a breach of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received this Section 1.03 by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionStockholder.
Appears in 1 contract
Sources: Undertaking Agreement (Ats Corp)
No Solicitation. Neither (a) Except as expressly permitted by this Section 6.03, the Company nor any of its Subsidiaries or affiliates shall, and shall (and cause the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited Subsidiaries to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving shall instruct the Company or any Subsidiary, division or operating or principal business unit Representatives of the Company to (an "Acquisition Proposal"). The Company will i) immediately cease and cause to be terminated any existing activitiessolicitation, discussions or negotiations with any parties conducted heretofore person that may be ongoing with respect to an Acquisition Proposal, or any inquiry, expression of interest, proposal, discussion, negotiations or offer that would reasonably be expected to lead to an Acquisition Proposal, (ii) within two (2) Business Days after the date of this Agreement, request the prompt return or destruction of all confidential information of the Company previously furnished to any such person who executed a confidentiality agreement with the Company since January 1, 2024, in connection with its consideration of an Acquisition Proposal, and (iii) immediately terminate all access to any physical and electronic data room containing confidential information of the Company granted to any such person, its Affiliates or Representatives in connection with its consideration of an Acquisition Proposal.
(b) Except as expressly permitted by this Section 6.03, during the Pre-Closing Period, the Company agrees that it shall not and shall cause each Company Subsidiary and any of the foregoing. Notwithstanding officers, directors or employees of it or any Company Subsidiary not to, and shall instruct the other Representatives of the Company not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage any inquiries, proposals or offers that would be reasonably expected to lead to, an Acquisition Proposal, (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information in connection with, any inquiries, proposals or offers that constitute, or would be reasonably expected to lead to, an Acquisition Proposal except to notify such person of the existence of this Section 6.03(b) and to clarify the terms of any such Acquisition Proposal or (iii) execute or enter into any Acquisition Agreement; provided that notwithstanding the foregoing, the Company may furnish grant a waiver, amendment or release under any confidentiality or standstill agreement existing as of the date of this Agreement, solely to the extent necessary to allow a confidential Acquisition Proposal to be made to the Company or the Company Board (or any committee thereof) so long as (A) the Company Board has determined in good faith (after consultation with its outside legal counsel) that the failure to grant such waiver, amendment or release would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (B) the Company promptly (and in any event within one (1) Business Day) following the determination of the Company Board as required by the foregoing subclause (A) of this Section 6.03(b) notifies Parent of any such waiver, amendment or release; provided, however, that, prior to the receipt of the Company Shareholder Approval, nothing contained in this Section 6.03 shall prevent the Company or the Company Board (or any committee thereof), whether directly or indirectly through any Representative, from furnishing information to, or engaging in negotiations or discussions with, any person that has made a bona fide Acquisition Proposal after the date hereof, which Acquisition Proposal did not result from a material breach of this Section 6.03, if, and only if, prior to taking such action referred to in clause (ii) of this Section 6.03(b) (except that the Company or its Representatives may notify any person of the existence of this Section 6.03(b) and may clarify the terms of any such Acquisition Proposal), (1) the Company Board (x) determines in good faith (after consultation with its outside legal counsel and outside financial advisor) that such Acquisition Proposal is, or would reasonably be likely to lead to, a Superior Proposal and (y) determines in good faith (after consultation with its outside legal counsel) that its failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (2) the Company provides written notice to Parent of the determination referenced in subclause (1) promptly (and in any event within twenty-four (24) hours of such determination), and (3) the Company receives or has received from such person an executed Acceptable Confidentiality Agreement. The Company shall deliver to Parent a copy of any executed Acceptable Confidentiality Agreement promptly (and in any event within twenty-four (24) hours) following its execution. The Company shall provide to Parent any non-public information concerning its business, properties the Company or assets any of the Company Subsidiaries provided by the Company or any Company Subsidiary to any corporation, partnership, person or other entity or group entering into an Acceptable Confidentiality Agreement pursuant to appropriate confidentiality agreementsthis Section 6.03(b) that has not been previously provided to Parent prior to or substantially concurrently with the time it is provided to such person.
(c) The Company shall promptly (and in any event within two (2) calendar days after delivery to the Company) (i) provide Parent written notice of (A) the receipt of any Acquisition Proposal (including any material modification thereto) or (B) any inquiries, and may negotiate and participate in proposals or offers received by, or any discussions and or negotiations with such entity sought to be initiated or group continued with, the Company, any Company Subsidiary or any Representatives of the Company concerning an Acquisition Proposal and (xii) disclose to Parent the identity of such person making, and an unredacted copy of, any such Acquisition Proposal or any such inquiry, offer, proposal or request made in writing (or, if made orally, a reasonably detailed description of the material terms of such entity Acquisition Proposal, inquiry, offer, proposal or group has request). The Company will, promptly upon receipt or delivery thereof (and in any event within two (2) calendar days), provide Parent (and its outside counsel) with copies of all drafts and final versions of definitive agreements including schedules and exhibits thereto relating to such Acquisition Proposal, in each case exchanged between the Company or any of its Representatives, on the one hand, and the person making such Acquisition Proposal or any of its Representatives, on the other hand. The Company will keep Parent reasonably informed on a reasonably prompt basis (and in any event within twenty-four (24) hours of any material development) of the status and details (including with respect to any change in price, any change in the amount or form of consideration, or any other material amendments) of any such Acquisition Proposal or other inquiry, offer, proposal or request concerning an unsolicited basis submitted Acquisition Proposal. The Company shall promptly, and in any event within one (1) calendar day, following a bona fide written proposal determination by the Company Board (or any committee thereof) that an Acquisition Proposal is a Superior Proposal, notify Parent of such determination.
(d) Except as expressly set forth in Section 6.03(e), during the Pre-Closing Period, neither the Company nor the Company Board (or any committee thereof), as applicable, shall, and neither shall publicly propose to: (i) withhold, withdraw or qualify (or modify in a manner adverse to Parent or Merger Sub) the Company Board Recommendation; (ii) approve, recommend or otherwise declare advisable any Acquisition Proposal; (iii) enter into any Acquisition Agreement; (iv) submit any Acquisition Proposal or any matter related thereto to the Board vote of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and ; (yv) if an Acquisition Proposal has been publicly disclosed (other than by the commencement of a tender offer or exchange offer), refuse to affirm publicly the Company Board Recommendation following any reasonable written request by Parent to provide such reaffirmation within five (5) Business Days after Parent’s written request therefor (provided that the Company shall not be required to make more than one (1) such reaffirmation with respect to any Acquisition Proposal and one (1) additional affirmation with respect to any change to the financial or other material terms of Directors such proposal that was previously the subject of a reaffirmation) or (vi) refrain from recommending against any Acquisition Proposal that is a tender offer or exchange offer within ten (10) Business Days after the commencement thereof; (vii) fail to include the Company Board Recommendation in the Shareholder Circular when disseminated to the Company’s shareholders or (viii) authorize, commit, resolve or agree to take any such actions (any such action, other than those set forth in the preceding clause (iii), an “Adverse Recommendation Change”); provided, however, that neither (A) the determination by the Company in accordance with Section 6.03(a) that an Acquisition Proposal constitutes or would be reasonably likely to lead to a Superior Proposal pursuant to and in compliance with Section 6.03(a), nor (B) the delivery by the Company of the notice with respect to an Acquisition Proposal required by Section 6.03(c) shall, in and of itself, constitute an Adverse Recommendation Change.
(e) Notwithstanding anything in this Agreement to the contrary, prior to the receipt of the Ordinary Shareholder Approval, the Company Board (i) may effect an Adverse Recommendation Change or cause the Company to terminate this Agreement (by written notice to Parent of such termination) in order to enter into, or cause a Company Subsidiary to enter into, an Acquisition Proposal (subject to the payment of the Company determinesTermination Fee in accordance with Section 8.03(b)), only if the Company receives a written Acquisition Proposal that did not result from a material breach of this Section 6.03 that the Company Board determines in good faith (after receipt of advice from independent consultation with its outside legal counsel and outside financial advisor) is a Superior Proposal and determines in good faith (after consultation with its outside legal counsel) that its failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law or (ii) may effect an Adverse Recommendation Change if an Intervening Event occurs and as a result thereof the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect an Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided that:
(i) prior to effecting such an Adverse Recommendation Change with respect to a Superior Proposal or terminating this Agreement pursuant to Section 8.01(f), (A) the Company has notified Parent in writing that it intends to effect an Adverse Recommendation Change (which notice shall not constitute an Adverse Recommendation Change) or terminate this Agreement pursuant to Section 8.01(f), (B) the Company has provided Parent a summary of the material terms and conditions of such Acquisition Proposal, which shall include (at a minimum) all of the information that is specified in Section 6.03(c), (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 the Representatives of the Company reasonably available to discuss and negotiate in good faith, with Parent and its 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 (after consultation with its outside legal counsel and firmoutside financial advisor), 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 such Superior Proposal still constitutes a Superior Proposal and that the failure to make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f) in connection therewith would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law (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 Parent as provided above, but with respect to any such subsequent notices references herein to a “four (4) Business Day period” shall be deemed to be references to a “two (2) Business Day period”); and
(ii) prior to effecting such an Adverse Recommendation Change with respect to an Intervening Event, (A) the Company has notified Parent in writing that it intends to effect such an Adverse Recommendation Change, describing in reasonable detail the reasons for such Adverse Recommendation Change, (B) 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 the Representatives of the Company reasonably available to discuss and negotiate in good faith, with Parent and its Representatives any bona fide proposed modifications to the terms and conditions of this Agreement and (C) no earlier than the end of such four (4) Business Day period, the Company Board 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 provide such information effect an Adverse Recommendation Change would still be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prevent the Company or access the Company Board from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9, Item 1012(a) of Regulation M-A promulgated under the Exchange Act and Rule 14e-2 under the Exchange Act with respect to engage in such discussions an Acquisition Proposal or negotiations from making any disclosure to the Company’s shareholders if the Company Board determines (after consultation with its outside legal counsel) that its failure to do so would cause the Board of Directors be reasonably likely to violate be inconsistent with its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately Law; provided that such action that would otherwise constitute an Adverse Recommendation Change may only be made in accordance with Section 6.03(e).
(g) Except as set forth in any event within 24 hoursSection 8.03(d) communicate with respect to Mergerco the terms an Acquisition Proposal, for purposes of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.this Agreement:
Appears in 1 contract
No Solicitation. Neither Prior to the Termination Date, each Stockholder, in its capacity as a stockholder of the Company and not in any other capacity, agrees that neither it nor any of its Subsidiaries or affiliates shall (officers and the Company directors shall, and that it shall use its best commercially reasonable efforts to cause its officers, directors, employees, representatives agents and agentsadvisors (including any attorneys, including, but not limited tofinancial advisors, investment bankers, attorneys and bankers or accountants, ) not to), directly or indirectly, encourage: (i) initiate, solicit, knowingly encourage or otherwise facilitate the making, submission or announcement of, any Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information of the Company with respect to, or take any other action to facilitate any inquiries regarding or the making of any Acquisition Proposal, or (iii) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby; provided, that at any time prior to the adoption of the Merger Agreement by the Company Stockholders (as defined in the Merger Agreement), so long as the Acquisition Proposal is not as a result of a breach of Section 5.2 of the Merger Agreement by the Company, each Stockholder may, in response to a written Acquisition Proposal received by the Company, participate in or initiate discussions or negotiations with, request clarifications from, or provide any furnish information to, any corporationPerson which makes such an Acquisition Proposal, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving but only if the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, is permitted to participate in discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingwith, the Company may request clarifications from, or furnish information concerning its businessto, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate such Person in discussions and negotiations accordance with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity Section 5.2 of the party making such proposal Merger Agreement; provided, however, that nothing in this Section 2.01 shall prevent any Stockholder, in his or inquiry which it may receive in respect of any such transaction.her capacity
Appears in 1 contract
Sources: Voting Agreement (Animal Health International, Inc.)
No Solicitation. Neither the The Company nor any of its Subsidiaries or affiliates shall, and shall (and the Company shall use its best efforts to cause its Affiliates, officers, directors, employees, representatives and agents, including, but not limited to, investment bankersfinancial advisors, attorneys and accountantsother advisors, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information representatives and agents to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations conducted with any parties conducted heretofore other than Parent or Purchaser with respect to any Takeover Proposal (as defined below). The Company shall not, nor shall it authorize or permit any of its Affiliates to, nor shall it authorize or permit any officer, director or employee of or any financial advisor, attorney or other advisor, representative or agent of it or any of its Affiliates, to (i) directly or indirectly solicit, facilitate, initiate or encourage the making or submission of, any Takeover Proposal (including, without limitation, taking any action which would make Article TENTH of the foregoingCompany's Certificate of Incorporation not applicable to a Takeover Proposal), (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal or enter into any agreement, arrangement or understanding requiring it to abandon or terminate this Agreement or to fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any information with respect to, or take any other action intentionally to facilitate or in furtherance of any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal, or (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities (other than to permit the Company to receive a Takeover Proposal that did not result from a breach of any other provision of this Section 8.5(a)); provided that prior to Consummation of the Offer, in response to a Takeover Proposal that did not result from the breach of this Section 8.5 and following delivery to Parent of notice of the Takeover Proposal in compliance with its obligations under Section 8.5(d) hereof, the Company may (1) in response to any Takeover Proposal, request clarifications from (but not, except as contemplated by clause (2) below, participate in discussions or negotiations with) any third party which makes such Takeover Proposal, if such action is taken solely for the purpose of obtaining information reasonably necessary for the Company to ascertain whether such Takeover Proposal is a Superior Proposal, and (2) participate in discussions or negotiations with or furnish information (pursuant to a confidentiality/standstill agreement with customary terms as reasonably determined in good faith by the Company after consultation with outside counsel; provided that each such agreement is at least as limiting as any such agreement between Parent and the Company) to any third party which has made a bona fide Takeover Proposal if (A) the Company's Board of Directors reasonably determines in good faith (after consultation with its financial advisor) that taking such action would be reasonably likely to lead to the delivery to the Company of a Superior Proposal and (B) the Company's Board of Directors determines in good faith (after consultation with outside legal counsel) that it is necessary to take such actions in order to comply with its fiduciary duties under applicable Law. Notwithstanding Without limiting the foregoing, the Company may furnish information concerning agrees that any violation of the restrictions set forth in this Section 8.5(a) directly or indirectly by any of its businessSubsidiaries, properties officers, Affiliates or assets directors or any advisor, representative, consultant or agent retained by the Company or any of its Subsidiaries or Affiliates in connection with the transactions contemplated hereby, whether or not such Person is purporting to any 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 (x) if such entity or group has act on an unsolicited basis submitted a bona fide written proposal to the Board of Directors behalf of the Company relating to or any such transaction which the Board of Directors determines (based upon the advice its Subsidiaries, shall constitute a breach of independent investment bankers for this Section 8.5(a) by the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (will take all actions necessary or advisable to inform the appropriate individuals or entities referred to in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity prior sentence of the party making obligations undertaken in this Section 8.5. For purposes of this Section 8.5, a Person shall be deemed to have facilitated or encouraged an action or result only if any act or omission by such proposal Person (i) would reasonably be expected to facilitate or inquiry which it may receive in respect of any encourage such transactionaction or result or (ii) was intended by such Person to facilitate or encourage such action or result.
Appears in 1 contract
No Solicitation. Neither From the Company nor any date of this Agreement to the earlier to occur of the Closing or termination of this Agreement in accordance with Article VII, Seller shall not, and shall cause its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause and its Subsidiaries’ officers, directors, employees, directors and representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, (i) solicit, participate in initiate or initiate discussions or negotiations withencourage any Other Bid, or provide (ii) enter into any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore agreement with respect to any Other Bid or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Other Bid. In the event that the Seller (or any of its Subsidiaries) receives a proposal relating to any such transaction, Seller shall promptly advise Purchaser of such proposal. As used in this Section 5.15, “Other Bid” shall mean any proposal for a sale, spin-off or other disposition or similar transaction involving the Business or any of the foregoingConveyed Assets, other than (A) the transactions contemplated by this Agreement and (B) the sale of inventory in the ordinary course of business. Notwithstanding the foregoing, for the Company may furnish information concerning its businessavoidance of doubt, properties Seller shall not be responsible for any actions undertaken by Amgen Inc. or assets Wyeth or their respective officers, directors, employees or representatives. ARTICLE VI CONDITIONS SECTION 6.1 Conditions to Each Party’s Obligations. The respective obligations of each party to effect the transactions contemplated by this Agreement shall be subject to the satisfaction or waiver by Purchaser and Seller (to the extent permitted by applicable Law) at or prior to the Closing of the following conditions:
(a) The waiting period (including any corporation, partnership, person or other entity or group extensions thereof) applicable to the consummation of the transactions contemplated by this Agreement required pursuant to appropriate confidentiality agreementsthe HSR Act, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board extent necessary, shall have expired or been terminated; and (b) There shall not be in effect any statute, regulation, order, decree or judgment of Directors any Governmental Entity, which makes illegal or enjoins or prevents the consummation of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable lawtransactions contemplated by this Agreement. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.SECTION 6.2
Appears in 1 contract
Sources: Asset Purchase Agreement
No Solicitation. Neither From and after the Company nor any of its Subsidiaries or affiliates shall (date hereof, MDC will not, and the Company shall use its reasonable best efforts not to cause permit, any of its officers, directors, employees, attorneys, financial advisors, agents or other representatives and agents, including, but not limited or those of any of its Subsidiaries to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate initiate or knowingly encourage (including by way of furnishing information) any Takeover Proposal from any person, or engage in or initiate continue discussions or negotiations relating thereto; provided, however, that MDC may engage in discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may and furnish information concerning MDC and its businessSubsidiaries, businesses, properties or assets to to, any 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 third party which makes a Takeover Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only MDC concludes in good faith after receipt of advice from independent legal consultation with its outside counsel to the Company and firm, (who may be its regularly engaged outside counsel) that the failure to provide take such information or access action would present a reasonable possibility of violating the obligations of such Board to MDC or to engage in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the CompanyMDC's shareholders stockholders under applicable law. The Company shall immediately MDC will promptly (but in any event within no case later than 24 hours) communicate to Mergerco notify Boeing of the terms receipt of any proposalTakeover Proposal, discussion, negotiation or inquiry (including the material terms and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) conditions thereof and the identity of the party person or group making such Takeover Proposal, and will promptly (but in no case later than 24 hours) notify Boeing of any determination by MDC's Board of Directors that a Superior Proposal (as hereinafter defined) has been made. As used in this Agreement, (i) "Takeover Proposal" shall mean any proposal or inquiry which it may offer, or any expression of interest by any third party relating to MDC's willingness or ability to receive or discuss a proposal or offer, in respect each case made prior to the stockholder vote at the MDC Meeting, other than a proposal or offer by Boeing or any of any such transaction.its Subsidiaries, for a merger, consolidation or other
Appears in 1 contract
No Solicitation. Neither the (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or affiliates shall (and the Company shall use permit any of its best efforts to cause its officers, directors, employeesofficers or employees or any investment banker, representatives and agentsfinancial advisor, includingattorney, but not limited accountant or other representative retained by it or any of its Subsidiaries to, investment bankers, attorneys and accountants, not to), directly or indirectlyindirectly through another Person, encourage, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed to facilitate, any inquiries or the making of any proposal which constitutes a proposal for a “New Acquisition Transaction” or (ii) participate in or initiate any discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group regarding a proposal for a New Acquisition Transaction.
(other than Mergerco, any of its affiliates or representativesb) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to Neither the Board of Directors of the Company relating nor any committee thereof shall (i) withdraw or modify in a manner adverse to any Parent and Merger Sub, the approval or recommendation by such transaction which the Board of Directors determines or such committee of the Merger or this Agreement, or (based upon ii) cause or permit the advice of independent investment bankers for the CompanyCompany to enter into any “New Acquisition Agreement”.
(c) represents a superior transaction In addition to the obligations of the Company set forth in Sections 5.8(a) and (b), the Company shall promptly advise Parent and Merger Sub orally, and promptly thereafter in writing, of any proposal for the shareholders of a New Acquisition Transaction received by the Company, the material terms and (y) if the Board conditions of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) proposal for a New Acquisition Transaction and the identity of the party Person making such proposal or inquiry for a New Acquisition Transaction, all of which it may receive in respect information shall be kept confidential by Parent and Merger Sub.
(d) For purposes of any such transaction.this Agreement:
Appears in 1 contract
No Solicitation. Neither From and after the Company nor any date hereof until the earlier of its Subsidiaries the Termination Date or affiliates shall (the date of termination of this Agreement pursuant to Section 11, without the prior written consent of BTWO, EuroSwiss will not, and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but will not limited authorize or permit EuroSwiss Representative to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate initiate or encourage (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal from any Person, or engage in or initiate discussions any discussion or negotiations relating thereto or accept any purchase proposal in any way relating to the Assets. If EuroSwiss receives any such inquiries, offers or proposals it shall (a) notify BTWO orally and in writing of any such inquiries, offers or proposals (including the terms and conditions of any such proposal and the identity of the person making it), within 48 hour of the receipt thereof, (b) keep BTWO informed of the status and details of any such inquiry, offer or proposal, and (c) give BTWO five days' advance notice of any agreement to be entered into with, or provide any information to be supplied to, any corporationPerson making such inquiry, partnershipoffer or proposal. As used herein, person "Acquisition Proposal" means a proposal or other entity or group offer (other than Mergerco, any of its affiliates pursuant to this Agreement) for a tender or representatives) concerning any merger, tender offer, exchange offer, sale of assetsmerger, sale of shares of capital stock consolidation or debt securities or similar transactions other business combination involving the Company any or any Subsidiaryproposal to acquire in any manner a substantial equity interest in, division or operating all or principal business unit substantially all of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoingAssets. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets EuroSwiss will remain free to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner, any effort or attempt by any person to do or seek any of the Board of Directors foregoing to violate its the extent their fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionrequire.
Appears in 1 contract
Sources: Purchase Agreement (B2Digital, Inc.)
No Solicitation. Neither Until the earlier of (a) the Effective Time, --------------- or (b) the date of termination of this Agreement pursuant to the provisions of Section 9.1 hereof, neither the Company, nor Stockholders shall (nor shall the Company nor or Stockholders permit, to the extent legally possible, any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its Company's officers, directors, employees, representatives and Stockholders, agents, including, but not limited to, investment bankers, attorneys and accountants, not representatives or affiliates to), directly or indirectly, take any of the following actions with any party other than Parent and its designees:
(a) solicit, encourage, solicit, initiate or participate in any inquiry, negotiations or initiate discussions or negotiations withdiscussions, or provide enter into any information toagreement, with respect to any corporationoffer or proposal to acquire all, partnershipsubstantially all, person or other entity any significant portion of the Company's business, properties or group technologies, or any portion of the Company's capital stock (other than Mergercowhether or not outstanding), any whether by merger, purchase of its affiliates or representatives) concerning any mergerassets, tender offer, exchange offerlicense or otherwise, sale or effect any such transaction;
(b) disclose any information not customarily disclosed to any person concerning the Company's business, technologies or properties, or afford to any person or entity access to its properties, technologies, books or records, not customarily afforded such access; or
(c) assist or cooperate with any person to make any proposal to purchase all or any part of assets, sale of shares of the Company capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit assets of the Company (an "Acquisition Proposal")Company. The Company will immediately cease any existing activitiesIn the event that the Company, discussions Stockholders or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding Company's affiliates shall receive, prior to the foregoingEffective Time or the termination of this Agreement, any offer, proposal, or request, directly or indirectly, of the type referenced in clause (a) or (c) above, or any request for disclosure or access pursuant to clause (b) above, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate notify Parent thereof, including information as to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the offeror or the party making such proposal or inquiry which it may receive in respect of any such transactionoffer or proposal and the specific terms of such offer or proposal, as the case may be, and such other information related thereto as Parent may reasonably request. The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 5.2 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of the provisions of this Section 5.2 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which Parent may be entitled at law or in equity.
Appears in 1 contract
Sources: Merger Agreement (Lantronix)
No Solicitation. Neither (a) No Solicitation or Negotiation. Except as set forth in this Section 6.1, the Company shall not, nor shall it authorize or permit any Subsidiary of it or any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, not to)other advisors and representatives, collectively, "Representatives") to directly or indirectly, encourage, :
(i) solicit, initiate, encourage or facilitate any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal (as defined below in Section 6.1(f)), including without limitation 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 initiate any discussions or negotiations regarding, furnish to any person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal or provide any inquiry, proposal or offer that could reasonably be expected to lead to any Acquisition Proposal. Notwithstanding the foregoing and subsection (e) below, prior to the adoption of this Agreement at the Company Stockholders' Meeting (the "Specified Time"), the Company may, to the extent required by the fiduciary obligations of the Company Board or any special committee thereof, as determined in good faith by the Company Board or any such special committee, after consultation with its outside counsel, in response to a bona fide, unsolicited Acquisition Proposal made or received after the date of this Agreement (including, without limitation, an Acquisition Proposal received from a person with whom the Company had discussions or to whom the Company furnished information toprior to the date hereof) that the Company Board or any special committee determines in good faith after consultation with its outside counsel and its financial advisor is reasonably likely to lead to a Superior Proposal (as defined below in Section 6.1(f)), in each case that did not follow a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), (x) furnish information with respect to the Company to the person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement with terms no less favorable to the Company than the Confidentiality Agreement (as defined in Section 9.3) and (y) participate in discussions or negotiations with such person and its Representatives regarding any corporationAcquisition Proposal. Without limiting the foregoing, partnership, person or other entity or group (other than Mergerco, it is agreed that any violation of its affiliates or representativesthe restrictions set forth in this Section 6.1(a) concerning by any merger, tender offer, exchange offer, sale Representative of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any SubsidiarySubsidiary of it, division whether or operating or principal business unit not such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 6.1(a) by the Company.
(b) No Change in Recommendation or Alternative Acquisition Agreement. Neither the Company Board nor any committee thereof shall:
(i) except as set forth in this Section 6.1, withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Buyer or the Transitory Subsidiary, the approval or recommendation by the Company Board or any such committee of this Agreement or the Merger;
(ii) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement (an "Alternative Acquisition Agreement") constituting or relating to any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iii) adopt, approve or recommend, or propose to adopt, approve or recommend, any Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its businessBoard or any special committee thereof may, properties or assets in response to any 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 a Superior Proposal (x) if such entity or group has on an unsolicited basis submitted that did not follow a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received breach by the Company of this Section 6.1, to the extent the Company Board or any special committee thereof, respectively, determines in connection good faith, after consultation with such proposalits outside counsel, discussionthat its fiduciary obligations require it to do so, negotiation (A) take any of the actions referred to in clauses (i) or inquiry(iii) of the first sentence of this Section 6.1(b) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction(B) terminate this Agreement pursuant to Section 8.1(f).
Appears in 1 contract
Sources: Merger Agreement (Switchboard Inc)
No Solicitation. Neither (a) From and after the Company date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article 10, the Shareholders, SDK and/or Precision and their respective Subsidiaries will not, nor will they authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employeesstockholders, representatives and agentsaffiliates or employees or any investment banker, including, but not limited attorney or other advisor or representative retained by any of them to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, indirectly take any action to solicit, participate in initiate, seek or initiate discussions encourage or negotiations withsupport any inquiry, proposal or provide offer from, furnish any information to, or participate in any corporation, partnership, person or other entity or group (other than Mergerconegotiations with, any Person regarding any acquisition of its affiliates SDK, Precision or representatives) concerning any mergerof their respective Subsidiaries, tender offerany merger or consolidation with or involving, exchange offer, sale or any acquisition of assets, sale any material portion of shares of capital the stock or debt securities or similar transactions involving the Company assets of SDK, Precision or any Subsidiaryof their respective Subsidiaries or any material license of any Intellectual Property Rights of SDK, division Precision or operating or principal business unit of the Company their respective Subsidiaries (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingforegoing being referred to in this Agreement as an "ACQUISITION PROPOSAL") or enter into an agreement concerning any Acquisition Proposal with any party other than Presstek and Purchaser.
(b) The Shareholders shall as promptly as reasonably practicable: (i) advise Presstek in writing of any Acquisition Proposal or request which SDK or Precision reasonably believes could lead to an Acquisition Proposal, the Company may furnish information concerning its businessmaterial terms and conditions of such request, properties inquiry or assets to any corporationAcquisition Proposal, 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party Person or group making such proposal or inquiry which it may receive in respect of any such transactionrequest, inquiry or Acquisition Proposal, and (ii), upon the request of Presstek, notify such Person or group of the obligations under this Agreement and the intention to abide by them. The Shareholders shall keep Presstek informed as promptly as practicable in all material respects of amendments to any such request, inquiry or Acquisition Proposal.
Appears in 1 contract
No Solicitation. Neither (a) Prior to the Company Effective Time, ▇▇▇▇▇▇▇ agrees that neither it, any of its Subsidiaries, nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective directors, officers, directors, employees, agents or representatives and agentsof the foregoing, including, but not limited to, investment bankers, attorneys and accountants, not to)will, directly or indirectly, encourage, solicit, participate in (i) solicit or initiate (including by way of furnishing or disclosing non-public information) any inquiries or the making of any proposal with respect to any merger, consolidation or other business combination involving ▇▇▇▇▇▇▇ or the acquisition of all or any significant part of the assets or capital stock of ▇▇▇▇▇▇▇ (a "▇▇▇▇▇▇▇ Acquisition Transaction") or (ii) negotiate, explore or otherwise engage in discussions or negotiations withwith any person (other than Shire and its representatives) with respect to any ▇▇▇▇▇▇▇ Acquisition Transaction, or provide which may reasonably be expected to lead to a proposal for a ▇▇▇▇▇▇▇ Acquisition Transaction or enter into any agreement, arrangement or understanding with respect to any such ▇▇▇▇▇▇▇ Acquisition Transaction or which would require it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, however, that ▇▇▇▇▇▇▇ may, in response to an unsolicited written proposal from a third party regarding a ▇▇▇▇▇▇▇ Superior Proposal (as hereinafter defined), furnish information to, any corporationnegotiate or otherwise engage in discussions with such third party, partnershipif the Board of Directors of ▇▇▇▇▇▇▇ determines in good faith, person or other entity or group after consultation with its financial advisors and based upon advice of outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties under applicable law.
(other than Mergercob) Except as may be required pursuant to the fiduciary duties of ▇▇▇▇▇▇▇' Board of Directors under applicable law, any of its affiliates or representatives) concerning any merger▇▇▇▇▇▇▇ agrees that, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit as of the Company (an "Acquisition Proposal"). The Company will date hereof, it and its Subsidiaries, and the respective directors, officers, employees, agents and representatives of the foregoing, shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties person (other than Shire and its representatives) conducted heretofore with respect to any ▇▇▇▇▇▇▇ Acquisition Transaction. ▇▇▇▇▇▇▇ agrees to promptly advise Shire of any inquiries or proposals received by, any such information requested from, or any negotiations or discussions sought to be initiated or continued with, ▇▇▇▇▇▇▇ or its Subsidiaries, or any of the respective directors, officers, employees, agents or representatives of the foregoing. Notwithstanding , in each case from a person (other than Shire and its representatives) with respect to a ▇▇▇▇▇▇▇ Acquisition Transaction, and the foregoingterms hereof, including the identity of such third party and the general terms of any financing arrangement or commitment in connection with such ▇▇▇▇▇▇▇ Acquisition Transaction, and, except as may otherwise be required pursuant to the fiduciary duties of ▇▇▇▇▇▇▇' Board of Directors under applicable law, to update on an ongoing basis or upon Shire's reasonable request, the Company may furnish information concerning its businessstatus thereof, properties or assets to as well as any corporation, partnership, person actions taken or other entity or group developments pursuant to appropriate confidentiality agreementsthis Section 4.6. As used herein, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted "▇▇▇▇▇▇▇ Superior Proposal" means a bona fide fide, written and unsolicited proposal or offer made by any persons (or group) (other than Shire or any of its Subsidiaries) with respect to a ▇▇▇▇▇▇▇ Acquisition Transaction (i) on terms which the Board of Directors of ▇▇▇▇▇▇▇ determines in good faith, and in the Company relating to any such transaction which the Board exercise of Directors determines reasonable judgment (based upon on the advice of independent investment bankers for financial advisors and legal counsel), to be more favorable to ▇▇▇▇▇▇▇ and its shareholders than the Company) represents a superior transaction to transactions contemplated hereby (including taking into account the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionfinancing thereof.)
Appears in 1 contract
No Solicitation. Neither (a) From and after the date hereof, except as specifically permitted in this Section 6.3, (1) the Company nor shall not, and shall cause each of its Subsidiaries not to, and (2) the Company shall not, and shall cause each of its Subsidiaries not to, authorize or permit any of its or their Representatives to, directly or indirectly: (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any Acquisition Proposal or any inquiries with respect to the submission or announcement of any Acquisition Proposal; (ii) participate in discussions or negotiations regarding, or furnish any non-public information relating to, the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, any effort or attempt by any Person (other than Parent or its Affiliates) to make an inquiry in respect of or make any proposal or offer that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; (iii) except for confidentiality agreements entered into pursuant to and in accordance with the proviso set forth in clause (d)(iv)(A) of this Section 6.3, enter into a letter of intent, memorandum of understanding or other agreement with any Person, other than Parent or its Affiliates, relating to an Acquisition Proposal; or (iv) waive any Standstill Agreement (as defined below) or voting restriction contained in the organizational or governing documents of the Company or any of its Subsidiaries, in each case except (A) to the extent necessary to permit the Company to take an action it is otherwise permitted to take under Section 6.3(d) in full compliance with such provision or (B) to the extent that the Company has duly effected a Change of Board Recommendation in accordance with the terms hereof with respect to a proposal by the third party subject to such Standstill Agreement. The Company shall ensure that its Representatives are aware of the provisions of this Section 6.3, and any violation of the restrictions contained in this Section 6.3 by the Company’s Board of Directors (including any committee thereof) or any director, officer or employee of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.3 by the Company; provided that for all purposes of this Agreement, the Company shall not have violated any of its covenants contained in this Section 6.3 in the event that a non-officer employee of the Company or any of its Subsidiaries violates a covenant contained in this Section 6.3 and such violation does not lead to or result in an Acquisition Proposal.
(b) The Company shall, and shall cause each of its Subsidiaries and instruct its Representatives to, (i) immediately cease and terminate any existing solicitations, discussions, negotiations or other activity with any Person (other than Parent or its Affiliates) being conducted with respect to any Acquisition Proposal or inquiry that may reasonably be expected to lead to, any Acquisition Proposal on the date hereof, (ii) promptly request that each Person (other than Parent or its Affiliates) that has received confidential information in connection with a possible Acquisition Proposal return to the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries and (iii) use reasonable best efforts to enforce, and not amend, terminate, modify or grant any waiver under, any confidentiality, standstill or other agreement to which the Company is a party (such agreement, a “Standstill Agreement”), except as otherwise contemplated by Section 6.3(a)(iv)(A) or Section 6.3(a)(iv)(B).
(c) From and after the date hereof, the Company shall notify Parent as soon as practicable (but in any event within forty-eight (48) hours) after receipt of (i) any Acquisition Proposal or indication that any Person is considering making an Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries or affiliates (iii) any request for access to the properties, assets or the books and records 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 description of the material terms of such Acquisition Proposal, indication or request and a copy of such Acquisition Proposal, if in writing. The Company shall keep Parent informed on a reasonably current basis of the status and the Company material terms of any such Acquisition Proposal, indication or request and shall use its best efforts notify Parent promptly (but in any event within forty-eight (48) hours) of any material change in the terms of any such Acquisition Proposal, indication or request (including whether such Acquisition Proposal, indication or request has been withdrawn or rejected and of any material change to cause its officersthe terms thereof) and concurrently provide a copy of any document received from or on behalf of the Person making such Acquisition Proposal, directors, employees, representatives indication or request relating to any such material development.
(d) Notwithstanding the foregoing provisions of Section 6.3(a) and agents, including, but not limited to, investment bankers, attorneys and accountants, not toSection 6.3(b), directly prior to the Effective Time, the Company or indirectly, encourage, solicit, participate its Board of Directors may engage in or initiate discussions or negotiations with, or provide furnish or disclose any information relating to the Company or any of its Subsidiaries or give access to the properties, assets or the books and records of the Company or any of its Subsidiaries to, any corporationa Person in response to an unsolicited, partnershipbona fide, person or other entity or group written third party proposal with respect to an Acquisition Proposal that is submitted to the Company by such Person (other than Mergercoand not withdrawn) if (i) none of the Company, any of its affiliates or representativesSubsidiaries nor any Representatives of the Company and any of its Subsidiaries shall have breached any of the provisions set forth in this Section 6.3 in any respect, (ii) concerning such Person is not a party to any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving Standstill Agreement with the Company or any Subsidiaryof its Subsidiaries (except as otherwise contemplated by Section 6.3(a)(iv)(A) or Section 6.3(a)(iv)(B)), division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (xiii) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines shall have determined in good faith (based upon the advice of independent investment bankers for after consultation with the Company’s legal and financial advisors) represents that such Acquisition Proposal could reasonably be expected to result in a superior transaction Superior Proposal and (after consultation with the Company’s legal advisor) that the failure to take such action could reasonably be expected to result in a breach of the directors’ fiduciary obligations to the Merger for the shareholders stockholders of the CompanyCompany under applicable Laws, and (yiv) if the Company (A) shall have entered into a confidentiality agreement on terms no more favorable to such Person than those contained in the Confidentiality Agreement and provided a copy of such agreement to Parent and (B) shall concurrently disclose or make available the same information to Parent as it makes available to such Person to the extent such information was not previously disclosed to Parent.
(e) Neither the Board of Directors of the Company determinesnor any committee thereof shall, only after receipt except as provided in this Section 6.3(e) or Section 6.3(f), (i) withdraw, change, amend, modify or qualify, or publicly propose to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or Merger Subsidiary, the Company Board Recommendation, (ii) approve, endorse or recommend or publicly propose to approve, endorse or recommend any Acquisition Proposal (any action or failure to act described in clause (i) or clause (ii) of advice from independent legal counsel this Section 6.3(e), being a “Change of Board Recommendation”) or (iii) approve or publicly propose to approve, endorse or recommend or cause the Company or any of its Subsidiaries to enter into, any letter of intent, agreement in principle or other agreement relating to any Acquisition Proposal (other than a confidentiality agreement permitted by Section 6.3(d)(iv)(A)). Notwithstanding the immediately preceding sentence, if, at any time prior to the date on which the Required Company Vote is obtained for the Merger, the Board of Directors of the Company determines in good faith (after consultation with the Company’s legal and firmfinancial advisors) that an Acquisition Proposal constitutes a Superior Proposal, the Board of Directors of the Company may (x) effect a Change of Board Recommendation in response to the Superior Proposal and/or (y) if the Effective Time has not occurred, terminate this Agreement in accordance with Section 8.1(c)(ii) and simultaneously enter into a definitive agreement with respect to such Superior Proposal, but only if (A) the Company’s Board of Directors determines in good faith (after consultation with the Company’s legal advisors) that the failure to take such action would reasonably be expected to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Laws, (B) the Board of Directors of the Company provides Parent with at least three (3) Business Days’ advance written notice of the actions described in clauses (x) and (y) of this Section 6.3(e) that it intends to take and specifying the material events giving rise thereto and providing to Parent copies of the drafts of the relevant proposed transaction agreements with the Person making the Superior Proposal and other material documents related to such Superior Proposal (provided, that after the giving of such notice, in the event that the applicable Superior Proposal is materially amended, changed or modified (it being understood that any amendment, change or modification to the consideration offered or the conditions to the consummation of the transactions contemplated by such Acquisition Proposal would be deemed to be a material amendment, change or modification), then, upon each such occasion, the Company shall provide prompt notice to Parent describing such information material amendment, change or access modification (and a copy of any document from or on behalf of the Person making the Superior Proposal relating to engage such amendment, change or modification) and a new advance notice period of twenty-four (24) hours shall be applicable; provided further that in no event shall the initial three (3) Business Day period be shortened to a period less than three (3) Business Days) and (C) during such discussions three (3) Business Day period (or negotiations later twenty-four (24) hour period), the Company and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives to amend this Agreement so as to enable the Board of Directors of the Company to determine that the Superior Proposal no longer constitutes a Superior Proposal (after taking into account any agreed modifications to the terms of this Agreement) and at the end of such three (3) Business Day period (or later twenty-four (24) hour period), the Board of Directors of the Company maintains its determination that the Superior Proposal constitutes a Superior Proposal (after taking into account any agreed modifications to the terms of this Agreement). The Company shall not submit to the vote of its stockholders any Acquisition Proposal or Superior Proposal prior to the termination of this Agreement.
(f) Notwithstanding the first sentence of Section 6.3(e), if, at any time prior to the date on which the Required Company Vote is obtained for the Merger, the Board of Directors of the Company determines in good faith (after consultation with the Company’s legal advisors) that the failure to take such action would cause reasonably be expected to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Laws, the Board of Directors of the Company may at any time prior to the date on which the Required Company Vote is obtained for the Merger in response to an Intervening Event effect a Change of Board Recommendation; provided, however, that the Board of Directors of the Company may not effect such a Change of Board Recommendation unless (i) the Board of Directors of the Company shall have provided Parent with at least three (3) Business Days’ advance written notice of its intent to effect a Change of Board Recommendation specifying the material events giving rise thereto, (ii) during such three (3) Business Day period, the Company and its Representatives shall have, if requested by Parent, negotiated in good faith with Parent and its Representatives to amend this Agreement so as to enable the Board of Directors to violate determine that failure to effect such Change of Board Recommendation no longer would reasonably be expected to result in a breach of its fiduciary duties to the Company's shareholders stockholders of the Company under applicable law. The Laws, and (iii) Parent shall not have, during such three (3) Business Day period made an offer to amend this Agreement that would, upon the Company’s acceptance, be binding on Parent and that after due consideration of such offer in good faith, and (after consultation with the Company’s legal advisors) resulted in the Board of Directors of the Company concluding that failure to effect such Change of Board Recommendation would not reasonably be expected to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Laws; provided, that the Board of Directors of the Company shall immediately not be permitted to effect a Change of Board Recommendation pursuant to this Section 6.3(f) with respect to or in connection with any Acquisition Proposal (which shall be covered by and solely subject in all respects to Section 6.3(e)).
(g) Nothing contained in this Section 6.3 shall prohibit the Board of Directors of the Company from disclosing 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; provided, however, that any event within 24 hoursdisclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) communicate to Mergerco under the terms Exchange Act, an express rejection of any proposalapplicable Acquisition Proposal or an express reaffirmation of its recommendation to its stockholders in favor of the Merger shall be deemed to be a Change of Board Recommendation.
(h) Parent and Merger Subsidiary acknowledge and agree that the provisions of this Section 6.3 shall in no manner apply to or restrict the Company’s actions with respect to the divestiture of interests in the Divestment Transactions, discussionin each case, negotiation on substantially the same terms, as set forth or inquiry (and will disclose any written materials described in Section 6.2(c) of the Company’s Disclosure Letter, provided, that if the consideration to be received by the Company and its Subsidiaries in connection with any such proposal, discussion, negotiation transaction shall be less than the amount as set forth or inquirydescribed in Section 6.2(c) and the identity of the party making Company’s Disclosure Letter, the Company shall promptly notify Parent in writing of such proposal circumstances and shall not enter into any agreement with respect to or inquiry which it may receive in respect consummate such transaction without the prior written consent of any such transactionParent.
Appears in 1 contract
No Solicitation. Neither Until the earlier of the Effective Time and the date of termination of this Agreement pursuant to the provisions of Section 8.1 hereof, the Company will not take (and since April 23, 2000 inclusive has not taken), nor will the Company (and since April 23, 2000 inclusive has not permitted) permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its Company's officers, directors, employees, representatives and shareholders, attorneys, investment advisors, agents, includingrepresentatives, but not limited toAffiliates or Associates (collectively, investment bankers, attorneys and accountants, not to), "Representatives") to (directly or indirectly), take any of the following actions with any Person other than Parent and its designees: (a) solicit, encourage, solicitinitiate, entertain, accept receipt of, substantively review or encourage any proposals or offers from, or participate in or initiate conduct discussions with or engage in negotiations with, any Person relating to any offer or provide proposal, oral, written or otherwise, formal or informal (a "Competing Proposed Transaction"), with respect to any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving possible Business Combination with the Company or any Subsidiaryof its Subsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), division (b) provide information with respect to the Company to any Person, other than Parent, relating to (or operating which the Company believes would be used for the purpose of formulating an offer or principal business unit proposal with respect to), or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Business Combination with the Company or any Subsidiary of the Company (an "Acquisition Proposal"whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (c) agree to, enter into a Contract with any Person, other than Parent, providing for, or approve a Business Combination with the Company or any Subsidiary (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (d) make or authorize any statement, recommendation, solicitation or endorsement in support of any possible Business Combination with the Company or any Subsidiary (whether such Subsidiary is in existence on the date hereof or are hereafter organized) other than by Parent, or (e) authorize or permit any of the Company's Representatives to take any such action. The Company will shall immediately cease and cause to be terminated any existing activities, discussions such contacts or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company Person relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction or Business Combination. In addition to the Merger foregoing, if the Company receives prior to the Effective Time or the termination of this Agreement any offer or proposal (formal or informal, oral, written or otherwise) relating to, or any inquiry or contact from any Person with respect to, a Competing Proposed Transaction, the Company shall immediately notify Parent thereof and provide Parent with the details thereof, including the identity of the Person or Persons making such offer or proposal, and will keep Parent fully informed on a current basis of the status and details of any such offer or proposal and of any modifications to the terms thereof; provided, however, that this provision shall not in any way be deemed to limit the obligations of the Company and its Representatives set forth in the previous sentence. Each of the Company and Parent acknowledge that this Section 4.2 was a significant inducement for Parent to enter into this Agreement and the absence of such provision would have resulted in either (i) a material reduction in the merger consideration to be paid to the shareholders of the Company, and Company or (yii) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the a failure to provide such information or access or induce Parent to engage in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable lawenter into this Agreement. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.This
Appears in 1 contract
Sources: Merger Agreement (Broadcom Corp)
No Solicitation. Neither (a) Until the Company earlier of (i) the Closing Date or (ii) the date of termination of this Agreement pursuant to the provisions of ARTICLE IX hereof (the “Expiration Date”), neither Stockholder nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause (nor shall Stockholder or the Company permit, as applicable, any of its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not representatives or affiliates to), directly or indirectly, take any of the following actions with any party other than Parent, Merger Sub and their respective designees: (A) solicit, encourage, solicitseek, entertain, support, assist, initiate or participate in any inquiry, negotiations or initiate discussions or negotiations withdiscussions, or provide enter into any information toagreement, with respect to any corporationoffer or proposal to acquire all or any material part of the business, partnershipproperties or technologies of the Company, person or other entity any amount of the Company Capital Stock (whether or group (other than Mergerconot outstanding), any whether by merger, purchase of its affiliates or representatives) concerning any mergerassets, tender offer, exchange offerlicense or otherwise, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to effect any such transaction which (any such offer, proposal or inquiry, an “Acquisition Proposal”), (B) disclose any information not customarily disclosed to any Person concerning the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders business, technologies or properties of the Company, or afford to any Person access to Company properties, technologies, books or records, not customarily afforded such access, (C) assist or cooperate with any Person in connection with an Acquisition Proposal, other than with respect to the purchase of inventory in the ordinary course of business or (D) enter into any agreement with any person relating to an Acquisition Proposal. Stockholder and the Company shall immediately cease and cause to be terminated any such negotiations, discussion or agreements (yother than with Parent or Merger Sub) if that are the Board subject matter of Directors clause (A), (B), (C) or (D) above.
(b) Stockholder or the Company shall notify Parent promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal, or modification of or amendment to any Acquisition Proposal, or request for nonpublic information relating to the Company or for access to the properties, books or records of the Company, or notice by any Person that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate (1) 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 books and records of the Company determines, only after receipt and (2) the terms of advice from independent legal counsel the Acquisition Proposal (to the Company and firm, that extent disclosure of the failure to provide terms of such information or access or to engage in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties Acquisition Proposal does not breach any non-disclosure agreement existing prior to the Company's shareholders under applicable lawdate hereof). In no event will Stockholder or the Company accept any Acquisition Proposal prior to the Expiration Date. The Company shall immediately indemnify Parent, Merger Sub, their respective representatives and agents from and against any claims by any party to an Acquisition Proposal based upon or arising out of the discussion or consummation of the transactions contemplated by this Agreement.
(c) The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 6.4 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this Section 6.4 and to enforce specifically the terms and provisions hereof in any event within 24 hours) communicate court of the United States or any state having jurisdiction, this being in addition to Mergerco any other remedy to which Parent may be entitled at law or in equity. Without limiting the terms foregoing, it is understood that any violation of the restrictions set forth above by any proposalofficer, discussiondirector, negotiation agent, representative or inquiry (and will disclose any written materials received by affiliate of Stockholder or the Company in connection with such proposal, discussion, negotiation shall be deemed to be a breach of this Agreement by Stockholder or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionCompany.
Appears in 1 contract
No Solicitation. Neither the (a) The Company agrees that neither it nor any of its Subsidiaries or affiliates shall (officers and the Company directors shall, and that it shall use its best commercially reasonable efforts to cause its officers, directors, employees, representatives shareholders, affiliates, agents and agentsadvisors (including any attorneys, including, but not limited tofinancial advisors, investment bankers, attorneys and bankers or accountants, ) not to), directly or indirectly, encourage: (i) initiate, solicit, knowingly encourage or otherwise facilitate the making, submission or announcement of, any Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries regarding or the making of any Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal with respect to it, or (iv) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby; provided, that, so long as there has been no breach of this Section 5.2, the Company may, in response to a bona fide written Acquisition Proposal, participate in or initiate discussions or negotiations with, request clarifications from, or provide any furnish information to, any corporationPerson which makes such an Acquisition Proposal if (x) such action is taken subject to a confidentiality agreement containing customary terms and conditions comparable to the provisions of the Confidentiality Agreement, partnership, person or other entity or group (other than Mergerco, any y) the Board of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit Directors of the Company reasonably determines in good faith, after consultation with outside legal counsel and financial advisor, that such Acquisition Proposal constitutes a Superior Proposal and (z) the Board of Directors of the Company reasonably determines in good faith, after consultation with outside legal counsel, that such actions are necessary in order for the Board of Directors of the Company to comply with its fiduciary duties under applicable Legal Requirements.
(b) Neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Recommendations or (ii) resolve to do any of the foregoing; provided, that, so long as there has been no breach of this Section 5.2, the Board of Directors of the Company may withdraw, modify or amend the Recommendations and recommend an "Acquisition Proposal if (x) the Board of Directors of the Company reasonably determines in good faith, after consultation with outside legal counsel and financial advisor, that such Acquisition Proposal constitutes a Superior Proposal"). , (y) the Board of Directors of the Company reasonably determines in good faith, after consultation with outside legal counsel, that such actions are necessary in order for the Board of Directors of the Company to comply with its fiduciary duties under applicable Legal Requirements and (z) prior to taking such actions, the Board of Directors of the Company shall have given Parent at least two (2) business days notice of its intention to take such action and the opportunity during such period to submit a competing proposal (which shall be considered by the Board of Directors of the Company, as applicable, in good faith) and, notwithstanding such competing proposal, the Acquisition Proposal continues to constitute a Superior Proposal.
(c) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties Persons conducted heretofore with respect to any Acquisition Proposal. In addition to the obligations set forth in Section 5.2(a), the Company shall as promptly as practicable (and in any event within 48 hours) advise Parent of any request for information with respect to any Acquisition Proposal, or any inquiry, discussions or negotiation with respect to any Acquisition Proposal, and the status, acquisition price, financial details and other terms and conditions of such Acquisition Proposal. The Company shall keep Parent informed of the foregoingstatus and acquisition price and other material details (including any amendments or proposed amendments) of any such Acquisition Proposal and keep Parent informed as to the acquisition price and other material details of any information requested of or provided to it and as to the details of all discussions or negotiations with respect to any such Acquisition Proposal. The Company shall promptly provide to Parent any non-public information concerning it provided to any other Person in connection with any Acquisition Proposal, that was not previously provided to Parent.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 or any provision hereof shall prohibit the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating from (i) 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 and Item 1012(a) of Regulation M-A under the Exchange Act, or (ii) making such transaction which disclosure to the Company’s shareholders (including withdrawing or modifying, in a manner adverse to the transactions contemplated by this Agreement, the approval or recommendation by the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (yCompany or any committee thereof in favor of this Agreement or the Merger) if the Board of Directors of the Company determinesdetermines in good faith, only after receipt of advice from independent outside legal counsel to the Company Company, that such disclosure is required under applicable law and firm, that the failure to provide make such information or access or disclosure is reasonably likely to engage in such discussions or negotiations would cause the Board of Directors of the Company to violate its fiduciary duties to the Company's ’s shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.
Appears in 1 contract
No Solicitation. Neither the (a) The Company shall not, nor shall it permit or cause any of its Subsidiaries subsidiaries to, nor shall it authorize or affiliates shall (and permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative of, the Company shall use or any of its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited subsidiaries ("Company Representatives") to, investment bankers, attorneys and accountants, not on becoming aware of will take all reasonable actions to stop such person from continuing to), directly or indirectly, encourage, (i) solicit, participate in initiate or initiate discussions encourage or negotiations withotherwise intentionally facilitate (including by way of furnishing information) the making of any Acquisition Proposal, or provide (ii) enter into any information to, any corporation, partnership, person or other entity or group agreement (other than Mergerco, any of its affiliates or representativesconfidentiality and standstill agreements in accordance with the immediately following proviso) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingAcquisition Proposal, the Company may or (iii) participate in any discussions or negotiations regarding, or furnish information concerning its business, properties or assets to any corporationperson any information with respect to, partnershipor take any other action to facilitate any inquiries or the making of any proposal that constitutes, person or other entity or group pursuant may reasonably be expected to appropriate confidentiality agreementslead to, and may negotiate and participate any Acquisition Proposal; provided, however, that in discussions and negotiations with such entity or group concerning an Acquisition Proposal the case of this clause (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal iii), to the extent required by the fiduciary obligations of the Board of Directors of the Company, determined in good faith by the members thereof taking into consideration the written advice of outside counsel, the Company relating may at any time prior to Company Shareholder Approval (the "Applicable Period"), but not thereafter if the Merger is approved thereby, and subject to the Company providing written notice to Parent of its decision to take such action in response and only in response to an unsolicited written request therefor received without any initiation, encouragement, discussion or negotiation by the Company or any Company Representative and other than in contravention of this Section 8.2(a), furnish information to any person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) pursuant to a confidentiality agreement on substantially the same terms as provided in the Confidentiality Agreement referred to in Section 8.1 hereof and otherwise enter into discussions and negotiations with such transaction which person or group as to any superior proposal (as defined in Section 8.2(c)) such person or group has made. Without limiting the Board foregoing, it is understood that any violation of Directors determines (based upon the advice restrictions set forth in the preceding sentence by the Company or any Company Representative, whether or not such person is purporting to act on behalf of independent investment bankers for the Company or otherwise, shall be deemed to be a material breach of this Agreement by the Company) represents a superior transaction . The Company immediately shall cease and shall cause to be terminated any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted prior to the Merger date hereof by the Company or any Company Representatives with respect to any Acquisition Proposal existing on the date hereof. The Company promptly will notify Parent of the pendency of any negotiations respecting, or the receipt of, any Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means (i) any proposal, other than a proposal by Parent or any of its affiliates, for a merger or other business combination involving the Company, (ii) any proposal or offer, other than a proposal or offer by Parent or any of its affiliates, to acquire from the Company or any of its affiliates in any manner, directly or indirectly, an equity interest in the Company or any subsidiary, any voting securities of the Company or any subsidiary or a material amount of the assets of the Company and its subsidiaries, taken as a whole, or (iii) any proposal or offer, other than a proposal or offer by Parent or any of its affiliates, to acquire from the shareholders of the CompanyCompany by tender offer, and (y) if the Board of Directors exchange offer or otherwise more than 20% of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionoutstanding Shares.
Appears in 1 contract
No Solicitation. Neither (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of the Company nor or any investment banker, attorney or other advisor, agent or representative of the Company or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage the submission of any takeover proposal, (ii) enter into any agreement (other than confidentiality and standstill agreements in accordance with the immediately following proviso) with respect to any takeover proposal, or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may be reasonably be expected to lead to, any takeover proposal; PROVIDED, HOWEVER, in the case of this clause (iii), that prior to the vote of shareholders of the Company for approval of the matters referred to in Paragraph 5M hereof (and not thereafter if such matters are approved thereby) to the extent required by the fiduciary obligations of the Board of Directors of the Company, determined in good faith by a majority of the disinterested members thereof based on the advice of outside counsel, the Company, in response to an unsolicited superior proposal and a request for information pursuant thereto, may furnish information to any person or "group" within the meaning of Section 13(d)(3) of the Exchange Act pursuant to a confidentiality agreement. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer, director or employee of the Company or any of its Subsidiaries or affiliates shall (and any investment banker, attorney or other advisor, agent or representative of the Company, whether or not such Person is purporting to act on behalf of the Company or otherwise, shall use be deemed to be a material breach of this Agreement by the Company. For purposes of this Paragraph 5M, "takeover proposal" means (i) any proposal, other than a proposal by the Purchaser or any of its best efforts Affiliates, for a merger or other business combination involving the Company, (ii) any proposal or offer, other than a proposal or offer by the Purchaser or any of its Affiliates, to cause acquire from the Company or any of its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)Affiliates in any manner, directly or indirectly, encourage, solicit, participate an equity interest in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit any voting securities of the Company or any Subsidiary or a material amount of the assets of the Company and its Subsidiaries, taken as a whole, or (an "Acquisition Proposal"). The Company will immediately cease iii) any existing activitiesproposal or offer, discussions other than a proposal or negotiations with any parties conducted heretofore with respect to offer by the Purchaser or any of its Affiliates, to acquire from the foregoing. Notwithstanding the foregoing, shareholders of the Company may furnish information concerning its businessby tender offer, properties exchange offer or assets to any 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 otherwise more than 20% of the outstanding shares of Common Stock.
(xb) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to Neither the Board of Directors of the Company relating nor any committee thereof shall, except in connection with the termination of this Agreement pursuant to any such transaction which the Board of Directors determines Paragraph 8A, (based upon the advice of independent investment bankers for the Companyi) represents withdraw or modify, or pr▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ or modify, in a superior transaction manner adverse to the Merger for Purchaser the shareholders of the Company, and (y) if approval or recommendation by the Board of Directors of the Company determinesor any such committee thereof of this Agreement or take any action having such effect; PROVIDED, only after receipt of advice from independent legal counsel to the Company and firmHOWEVER, that the failure to provide such information or access or to engage in such discussions or negotiations would cause a statement by the Board of Directors of the Company to violate its shareholders as contemplated by Rule 14e-2(a) of the Exchange Act following Purchaser's receipt of a Notice of Superior Proposal (defined below) shall not be deemed to constitute a withdrawal or modification of its recommendation of this Agreement, or (ii) approve or recommend, or propose to approve or recommend, any takeover proposal. Notwithstanding the foregoing, in the event that the Board of Directors of the Company receives a takeover proposal that, in the exercise of its fiduciary duties obligations (as determined in good faith by a majority of the disinterested members thereof based on the advice of outside counsel), it determines to be a superior proposal, the Board of Directors of the Company may withdraw or modify its approval or recommendation of this Agreement and may (subject to the following sentence) terminate this Agreement, in each case at any time after midnight on the fifth Business Day following Purchaser's receipt of written notice (a "Notice of Superior Proposal") advising Purchaser that the Board of Directors of the Company has received a takeover proposal that it has determined to be a superior proposal, specifying the material terms and conditions of such superior proposal (including the proposed financing for such proposal and a copy of any documents conveying such proposal) and identifying the person making such superior proposal. The Company may terminate this Agreement pursuant to the preceding sentence only if the shareholders of the Company have not yet voted upon the matters set forth in Paragraph 5M hereof. Any of the foregoing to the contrary notwithstanding, the Company may engage in discussions with any Person or group that has made an unsolicited takeover proposal for the limited purpose of determining whether such proposal is a superior proposal. Nothing contained herein shall prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) following Purchaser's receipt of a Notice of Superior Proposal.
(c) For purposes of this Paragraph 5N, a "superior proposal" means any BONA FIDE takeover proposal to acquire, directly or indirectly, for consideration consisting of cash, securities or a combination thereof, all of the shares of Common Stock then outstanding or all or substantially all of the assets of the Company and its Subsidiaries, and otherwise on terms that a majority of the disinterested members of the Board of Directors of the Company determines in its good faith reasonable judgment (based on the advice of a financial advisor of nationally recognized reputation, a copy of which shall be provided to Purchaser) to be more favorable to the Company's shareholders under applicable law. The than the transactions contemplated by this Agreement, the Network Agreement and Plan of Reorganization and the Switch Agreement.
(d) In addition to the obligations of the Company set forth in paragraph (b), the Company shall immediately (promptly advise the Purchaser orally and in any event within 24 hours) communicate to Mergerco the terms writing of any takeover proposal or any inquiry with respect to or which could lead to any takeover proposal, discussion, negotiation the material terms and conditions of such inquiry or inquiry takeover proposal (including the financing for such proposal and will disclose any written materials received by the Company in connection with a copy of such documents conveying such proposal), discussion, negotiation or inquiry) and the identity of the party Person making any such takeover proposal or inquiry which it may receive in respect of any such transactioninquiry.
Appears in 1 contract
No Solicitation. Neither the Company nor Authorize or permit any of its Subsidiaries or affiliates shall respective agents to: (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, i) solicit, participate in initiate, encourage (including by way of furnishing information) or initiate discussions take any other action to facilitate, any inquiry or negotiations withthe making of any proposal which constitutes, or provide any information may reasonably be expected to lead to, any corporationacquisition or purchase of a substantial amount of assets of, partnershipor an equity interest of 30% or more in, person AIX or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offerconsolidation, exchange offerbusiness combination, sale of substantially all assets, sale of shares of capital stock or debt securities securities, recapitalization, liquidation, dissolution or similar transaction involving AIX (other than the transactions involving the Company contemplated by this Agreement) or any Subsidiaryother material corporate transaction the consummation of which would, division or operating could reasonably be expected to, impede, interfere with, prevent or principal business unit of materially delay the Company merger contemplated by this Agreement (an collectively, "Acquisition ProposalAIX Transaction Proposals"). The Company will immediately cease ) or agree to or endorse any existing activitiesAIX Transaction Proposal or (ii) propose, enter into or participate in any discussions or negotiations with any parties conducted heretofore with respect to regarding any of the foregoing. Notwithstanding the foregoing, the Company may or furnish to another person any information concerning with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, an effort or attempt by any other person to do or seek any corporationof the foregoing, partnershipprovided, person or other entity or group however, that the foregoing clauses (i) and (ii) shall not prohibit AIX from (A) furnishing information pursuant to an appropriate confidentiality agreementsletter concerning AIX and its businesses, and may negotiate and participate properties or assets to a third party who has made a Superior AIX Transaction Proposal (as defined below), (B) engaging in discussions and or negotiations with a third party who has made a Superior
3.6.1 shall prohibit AIX or its board of directors from making such entity disclosure to AIX's stockholders or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted taking any action which, in the good faith judgment of AIX's board of directors, may be required under applicable law, including Rules 14d-9 and 14e-2 promulgated under the Exchange Act. For purposes of this Agreement, the term "Superior AIX Transaction Proposal" shall mean a bona fide written proposal AIX Transaction Proposal that the board of directors of AIX determines in good faith after consultation with (and based in part on the advice of) its independent financial advisors to be more favorable to AIX's stockholders than the Board merger contemplated by this Agreement, is reasonably capable of Directors of the Company being financed and is not subject to any material contingencies relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionfinancing.
Appears in 1 contract
Sources: Merger Agreement (Astrotech International Corp /New)
No Solicitation. Neither Until the earlier of the termination of this Agreement pursuant to Section 7.1 and the Effective Time, the Company will not, nor will the Company permit, authorize or encourage any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its Company’s officers, directors, employeesagents or representatives (any of the foregoing, representatives and agents, including, but not limited a “Company Representative”) to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, take any of the following actions with any party other than Parent and its designees:
(a) solicit, participate in initiate, or initiate knowingly encourage any proposals or offers from, or conduct discussions or engage in negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, Parent and its designees relating to any possible acquisition of its affiliates or representatives) concerning any the Company (whether by way of merger, tender offer, exchange offer, sale of assets, sale of shares purchase of capital stock or debt securities any material portion of assets or similar transactions involving otherwise), any portion of the Company Company’s capital stock or assets or any Subsidiary, division or operating or principal business unit of equity interest in the Company (an "“Acquisition”);
(b) provide information with respect to the Company or its business to any person other than Parent and its designees, relating to a possible Acquisition Proposal")or otherwise cooperate with, facilitate or encourage any effort or attempt by any such person in connection with any possible Acquisition;
(c) enter into any agreement or understanding with any person other than Parent and its designees, providing for any Acquisition; or
(d) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition by any person other than Parent and its designees. The Company will shall immediately cease and cause to be terminated any existing activitiessuch contacts, discussions negotiations or negotiations activities with any third parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which or proposed transaction. In addition to the Board of Directors determines (based upon the advice of independent investment bankers for foregoing, if the Company) represents a superior transaction , or to the Merger for the shareholders knowledge of the Company, and (y) if any Company Representative, receives any offer or proposal relating to any such transaction or proposed transaction at any time prior to the Board of Directors earlier of the Company determinesEffective Time or the termination of this Agreement, only after receipt of advice from independent legal counsel to the Company immediately shall notify Parent thereof and firm, that the failure provide Parent with information as 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party offeror(s) making such proposal or inquiry which it may receive in respect of any such transactionoffer or proposal and the specific terms of such offer or proposal, as the case may be, and such other information related thereto as Parent may reasonably request.
Appears in 1 contract
Sources: Merger Agreement (pSivida LTD)
No Solicitation. Neither From the Company date hereof to the Second Closing Date or the earlier termination of this Agreement in accordance with its terms:
(a) neither any of the Sellers nor any of their Subsidiaries or other affiliates, nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their directors, officers, employees, representatives or other agents (together with the Sellers, collectively, the "SELLERS AFFILIATES") shall, directly or indirectly, (i) enter into any agreement (or agree to do so), or solicit, initiate or knowingly encourage the invitation of inquiries or proposals or offers from any person (other than Netzee or its directors, officers, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly ) concerning: (A) any sale of assets or indirectly, encourage, solicit, participate in transfer of liabilities of any of the Sellers Affiliates with respect to the Business or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group the Purchased Assets (other than Mergercoany such sale or transfer in the ordinary course of business); (B) any issuance, any of its affiliates purchase or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt or other securities or similar transactions involving the Company or of any Subsidiary, division or operating or principal business unit of the Company Sellers Affiliates with respect to the Business or the Purchased Assets; or (an "Acquisition Proposal")C) any merger, consolidation, restructuring, recapitalization or other significant transaction involving any of the Sellers Affiliates with respect to the Business or the Purchased Assets which would prevent or delay the consummation of the transactions contemplated by this Agreement; or (ii) provide any confidential information to, participate in discussions or negotiations relating to any such transaction with, or otherwise cooperate with or assist or participate in any effort to take such action by any person or entity (other than Netzee or its directors, officers, shareholders, employees, representatives and agents) with respect to the Business or the Purchased Assets. The Company Sellers shall promptly advise Netzee if any such inquiry, offer or proposal is made or received by any of the Sellers Affiliates after the date hereof; and
(b) the Sellers will immediately promptly cease and cause to be terminated any existing activities, discussions or negotiations with any parties persons conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 the Sellers will take the necessary steps to inform the individuals or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal entities referred to the Board of Directors above of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage obligations undertaken in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionthis Section 5.3.
Appears in 1 contract
No Solicitation. Neither Subject to Section 6 hereof, prior to the Company nor any of Termination Date, the Stockholder shall not, and, to the extent applicable, shall instruct its Subsidiaries or affiliates shall (Affiliates and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but subsidiaries not limited to, investment bankers, attorneys and accountants, shall instruct its and its Affiliates’ and subsidiaries’ respective representatives not to), directly or indirectly, encourage(i) initiate, solicit, participate solicit or engage in or initiate discussions or any negotiations withwith any Person with respect to, or provide any non-public information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) data concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (Company’s Subsidiaries to any Person relating to, an "Acquisition Proposal"), (ii) execute or enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other arrangement or agreement relating to an Acquisition Proposal, (iii) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal, or (iv) agree or otherwise commit to enter into or engage in any of the foregoing. The Company will Such Stockholder also agrees that, immediately following the execution of this Agreement, such Stockholder shall, and, to the extent applicable, shall instruct each of its Affiliates and subsidiaries to, and shall instruct its and its Affiliates’ and subsidiaries’ respective representatives to, cease any existing activitiessolicitations, discussions or negotiations with any parties Person (other than the Parties and their respective representatives) conducted heretofore in connection with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 or any inquiry or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal. Notwithstanding anything in this Agreement to the contrary, (xi) if such entity Stockholder shall not be responsible for the actions of the Company or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to (or any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders committee thereof), any subsidiary of the Company, or any officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (ycollectively, the “Company Related Parties”), (ii) if such Stockholder makes no representations or warranties with respect to the Board actions of Directors any of the Company determinesRelated Parties, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in iii) any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received breach by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of its obligations under Section 6.5 of the party making Merger Agreement shall not be considered a breach of this Section 5(a) (it being understood that, for the avoidance of doubt, such proposal Stockholder or inquiry which it may receive in respect of his, her or its representatives (other than any such transactionrepresentative that is a Company Related Party) shall remain responsible for any breach by such Stockholder or his, her or its representatives of this Section 5(a)).
Appears in 1 contract
Sources: Support Agreement (CITIC Capital Acquisition Corp.)
No Solicitation. Neither (a) Subject to the provisions of this Section 5.02, after the date hereof and prior to the Effective Time, the Company nor any of its Subsidiaries or affiliates shall (and agrees that the Company shall and its subsidiaries will not, and that it will use its best commercially reasonable efforts to cause its officers, directors, employees, representatives and agents, including, but not limited tomembers of senior management identified in the definition of Knowledge herein, investment bankers, or attorneys and accountants(collectively, not “Representatives”) of the Company or its subsidiaries to not, (i) solicit, initiate, or knowingly encourage the making, submission or announcement of any inquiry regarding, or any proposal or offer which would reasonably be expected to lead to), a merger, acquisition, consolidation, tender offer, exchange offer or other transaction involving, or any proposal or offer to purchase or acquire in any manner, directly or indirectly, encourage(A) assets (including equity interests of a Company Subsidiary) representing 20% or more of the assets or revenues of the Company and its subsidiaries taken as a whole, solicitor (B) 20% or more of the voting securities of the Company, participate other than, in each case, the Merger or initiate other transactions with Parent (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”), (ii) enter into, participate, continue or otherwise engage in discussions or negotiations with, or provide any non-public information to, to any corporation, partnership, person or other entity or group Person (other than MergercoParent, Sub and their Representatives) with respect to any inquiries regarding, or the making, submission or announcement of, an Acquisition Proposal, (iii) enter into or approve any letter of intent, agreement in principle, option agreement, share purchase agreement, acquisition agreement or similar agreement for an Acquisition Proposal, or (iv) terminate, waive, amend or modify any provision of, or grant permission under, any of its affiliates or representatives) concerning any mergerstandstill, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities confidentiality agreement or similar transactions involving Contract to which the Company or any SubsidiaryCompany Subsidiary is a party; provided, division that the foregoing will not prohibit the Company Board from terminating, waiving, amending or operating modifying any provision of, or principal business unit granting permission under, any standstill, confidentiality agreement or similar Contract if the Company Board determines in good faith that the failure to take such action, would be reasonably likely to constitute a breach of the Company (an "Acquisition Proposal")Board’s fiduciary duties to the Company’s stockholders under applicable Law. The Company will immediately cease and cause to be terminated any existing activitiessolicitation, discussion or negotiation with any Person (other than Parent, Sub or their Representatives) conducted prior to the date of this Agreement by the Company, its subsidiaries or any of their respective Representatives with respect to any actual or potential Acquisition Proposal.
(b) Subject to the provisions of this Section 5.02, the Company may, and may authorize any of its Representatives to, prior to the date that is 40 days following the date of this Agreement, (i) in response to a request by a Person who has made a bona fide written Acquisition Proposal that was not initiated or solicited in violation of Section 5.02(a), provide information to such Person (including to potential financing sources of such Person), if the Company receives from such Person so requesting the information an executed confidentiality agreement no more favorable in any material respect to such Person than the Confidentiality Agreement is to Parent (it being agreed that the Company will promptly provide to Parent, in accordance with the terms of the Confidentiality Agreement, any information concerning the Company or its subsidiaries provided to such other Person which was not previously provided to Parent); (ii) engage in discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, Person (and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (xPerson’s potential financing sources) if such entity or group who has on an unsolicited basis submitted made a bona fide written proposal Acquisition Proposal that was not initiated or solicited in violation of Section 5.02(a); and/or (iii) withdraw, modify or qualify in any manner adverse to Parent the Company Board’s recommendation to the Board of Directors of Company’s stockholders to approve and adopt this Agreement and the Merger or publicly approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal if, in each case, the Company relating to any such transaction which Board determines in good faith after consultation with the Board of Directors determines (based upon the advice of independent investment bankers for Special Committee and its advisors and the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent ’s outside legal counsel to the Company and firm, that the (A) failure to provide such information or access or take this action would be reasonably likely to engage in such discussions or negotiations would cause the Board constitute a breach of Directors to violate its fiduciary duties to the Company's shareholders ’s stockholders under applicable lawLaw and (B) the Acquisition Proposal, if applicable, either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal. As used in this Agreement, “Superior Proposal” means an unsolicited, bona fide written Acquisition Proposal made after the date hereof (for this purpose substituting “50%” for each reference to 20% in the definition of “Acquisition Proposal”) and that the Company Board determines in good faith (after consultation with the Special Committee and its advisors and the Company’s outside legal counsel) is reasonably expected to be consummated on the terms proposed, taking into account all legal, financial and regulatory aspects of the proposal, including the financing terms thereof and the Person making such proposal, and if consummated would result in a transaction that is more favorable to the stockholders of the Company from a financial point of view than the Transactions (after taking into account any revisions to the terms of the Transactions agreed to by Parent pursuant to Section 5.02(c)).
(c) The Company shall immediately will notify Parent orally and in writing promptly (and in any event within 24 hours) communicate to Mergerco after the terms of Company Board has determined that it has received any proposal, discussion, negotiation Acquisition Proposal or any request for information or inquiry (and which could reasonably be expected to lead to an Acquisition Proposal. The written notice will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and include the identity of the party Person making such proposal Acquisition Proposal, request or inquiry, the material terms of the Acquisition Proposal, request or inquiry which it may receive in respect (including any material written amendments or modifications, or any proposed material written amendments or modifications, thereto), and the Company will keep Parent reasonably informed on a current basis of any material changes with respect to such transactionAcquisition Proposal, request or inquiry. The Company will provide Parent with at least 36 hours prior notice (or such shorter notice as may be provided to the Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to determine that an Acquisition Proposal is a Superior Proposal. The Company will not exercise its right to terminate this Agreement pursuant to Section 8.01(e) hereof, and any purported termination pursuant thereto will be void of no force or effect, until after the fifth business day following Parent’s receipt from the Company of written notice (i) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of the Superior Proposal (and attaching a copy of the definitive agreement related thereto, if available) and (ii) stating that the Company intends to exercise its right to terminate this Agreement pursuant to Section 8.01(e) (in which case all references to 40 days in Section 1.02 and this Section 5.02 will be deemed extended for such new five business day period). The Company agrees that after notifying Parent that an Acquisition Proposal is a Superior Proposal, including during the five-business day period specified in the preceding sentence (such period, the “Parent Review Period”), Parent will be permitted to propose to the Company revisions to the terms of the Transactions, and the Company and its Representatives will, if requested by Parent, consider in good faith any revisions to the terms of the Transactions proposed by Parent. The Company will not be entitled to terminate this Agreement pursuant to Section 8.01(e) if Parent has, during the Parent Review Period, made a binding offer that, after consideration of such offer by the Company Board in good faith and after consultation with the Special Committee and its advisors and the Company’s outside legal counsel, results in the Company Board concluding that such Superior Proposal no longer constitutes a Superior Proposal. In the event of any amendment to the consideration or any other material revisions to the Superior Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.02(c) with respect to such new written notice (including a new Parent Review Period except that the new Parent Review Period will be three business days, in which case all references to 40 days in Section 1.02 and this Section 5.02 will be deemed extended for such new three business day period).
(d) The Company agrees that any action taken by any of its subsidiaries or a Representative of the Company or any of its subsidiaries that, if taken by the Company, would constitute a breach of the restrictions set forth in this Section 5.02, will be deemed to be a breach of this Agreement (including this Section 5.02) by the Company.
(e) Nothing contained in this Section 5.02 will prohibit the Company or its Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making such disclosure to the Company’s stockholders which, in the judgment of the Company Board after receiving advice of outside legal counsel, is reasonably likely to be required under applicable Law.
Appears in 1 contract
No Solicitation. Neither (a) From the Company nor any date of this Agreement to the earlier of the termination of this Agreement in accordance with its Subsidiaries or affiliates shall (terms and the Effective Time, the Company shall use its best efforts to not, and shall cause its officers, directors, employees, representatives and agents, including, but the Company Subsidiaries not limited to, and shall not authorize or permit any officer, director, employee, investment bankersbanker, attorneys and accountantsattorney, not accountant or other advisor or representative (collectively, with respect to any Person, such Person’s “Representatives”) of the Company or any Company Subsidiary to), directly (i) solicit, initiate or indirectlyknowingly encourage the submission of any Takeover Proposal, encourageor take any other action to knowingly facilitate, solicitenable or cooperate with the making of any Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal, (ii) enter into any Acquisition Agreement with respect to any Takeover Proposal, (iii) enter into, participate in or initiate continue any discussions or negotiations withregarding, or provide furnish to any person any non-public information with respect to, any corporationTakeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal or (iv) propose, partnershipresolve or agree to do any of the foregoing. The Company shall (A) immediately cease, and not authorize or permit any of its Representatives to continue, all discussions and negotiations with any person or other entity or group (other than Mergercowith Parent and its Representatives) regarding any Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal, (B) promptly (and in any event, within 1 Business Day) after the date hereof request the prompt return or destruction of all confidential information previously furnished to such person(s) (other than Parent and its affiliates Representatives) within the last 12 months for the purpose of allowing such person(s) to evaluate a possible Takeover Proposal and (C) promptly (and in any event, within 24 hours) after the date hereof terminate access of any person(s) (other than Parent and its Representatives) to any physical or representativeselectronic data rooms for the purpose of evaluating a possible Takeover Proposal. From the date of this Agreement to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, the Company shall not, and shall cause the Company Subsidiaries not to, (x) concerning waive, terminate, modify, fail to enforce, or release any mergerperson (other than Parent, tender offer, exchange offer, sale of assets, sale of shares of capital stock Merger Sub or debt securities their respective affiliates) under any “standstill” or similar transactions involving agreement or obligation or propose, resolve or agree to do the Company or any Subsidiaryforegoing, division or operating or principal business unit unless, prior to receipt of the Company Stockholder Approval, the Company Board (an "Acquisition Proposal"). The which may take into account the recommendation of a committee thereof) determines in its good faith judgment, after consultation with and receipt of advice from outside legal counsel and a financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent with its fiduciary duties under Delaware Law, in which event the Company will immediately cease Board may grant a waiver under such “standstill” or similar agreement or obligation solely to the extent to permit such Person to make a non-public proposal to the Company Board or (y) exempt any existing activitiesperson (other than Parent, discussions Merger Sub and their respective affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or negotiations with similar provisions of any parties conducted heretofore with respect other Takeover Law) or propose, resolve, or agree to any of do the foregoing. Notwithstanding the foregoing, at any time prior to receipt of the Company may furnish information concerning its businessStockholder Approval, properties if the Company or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted the Company Board receives a bona fide written proposal Takeover Proposal after the date hereof that was not solicited in breach or deemed breach of this Section 5.02(a) and did not otherwise result from a breach in any material respect or deemed breach in any material respect of this Section 5.02(a) and that (1) the Company Board (which may take into account the recommendation of a committee thereof) determines in its good faith judgment (after consultation with and after receipt of advice from outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or would reasonably be expected to lead to a Superior Proposal, and (2) the Company Board (which may take into account the recommendation of a committee thereof) determines in its good faith judgment, after consultation with and after receipt of advice from outside legal counsel and a financial advisor of nationally recognized reputation, that the failure to take the actions specified in the following clauses (I) and/or (II) of this sentence with respect to such Takeover Proposal would be inconsistent with its fiduciary duties to the Board of Directors stockholders of the Company relating under Delaware Law, then, subject to any providing prior written notice of its decision to take such transaction which action to Parent and compliance with Section 5.02(c), the Board of Directors determines Company may (based upon the advice of independent investment bankers for the CompanyI) represents a superior transaction furnish information with respect to the Merger for Company to the shareholders person making such Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement (provided that any information provided to such person shall have previously been provided to Parent or its Representatives or shall be provided to Parent or its Representatives prior to or at the same time as it is provided to such person) and (II) participate in discussions or negotiations with such person and its Representatives regarding such Takeover Proposal. Without limiting the foregoing, the Company agrees: (x) that any action taken by any Specified Person, any director of the Company, any employee of the Company or any Company Subsidiary with a title of senior vice president or more senior or any financial or legal advisor of the Company, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary, that, if taken by the Company or a Company Subsidiary, would constitute a breach of any provision set forth in this Section 5.02(a) shall be deemed to be a breach of this Section 5.02(a) by the Company; and (y) if the Board Company becomes aware of Directors an action by any Representative of the Company determinesor any Company Subsidiary not described in prior clause (x), only after receipt whether or not such person is purporting to act on behalf of advice from independent legal counsel to the Company and firmor any Company Subsidiary, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposalthat, discussion, negotiation or inquiry (and will disclose any written materials received if taken by the Company or a Company Subsidiary, would constitute a breach of any provision set forth in connection with such proposal, discussion, negotiation or inquirythis Section 5.02(a) and the identity Company does not promptly use its reasonable best efforts to prohibit or terminate such action, then such action shall be deemed to be a breach of the party making such proposal or inquiry which it may receive in respect of any such transaction.this Section 5.02(a)
Appears in 1 contract
No Solicitation. Neither (a) The Company and the Company nor any of its Subsidiaries or affiliates Stockholders shall (not, and the Company shall use its best efforts to cause its subsidiaries not to, and the Company agrees that it shall not authorize any of its directors, officers, directors, employees, agents or representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in initiate or initiate encourage (including by way of furnishing or disclosing non-public information) any inquiries, discussions or negotiations with, or provide the making of any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning proposal with respect to any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock consolidation or debt securities or similar transactions other business combination involving the Company or the acquisition of any Subsidiary, division material portion of the assets or operating or principal business unit capital stock of the Company or its subsidiaries (an a "Acquisition ProposalCOMPETING TRANSACTION"). The Company will immediately cease ) or negotiate, explore or otherwise communicate in any existing activities, discussions or negotiations way with any parties conducted heretofore person (other than Merger Sub and the Investor Group and their directors, officers, employees and representatives) with respect to any Competing Transaction; PROVIDED, HOWEVER, that the Company and its directors, officers, employees, agents or representatives may, to the extent required by the fiduciary obligations of the foregoing. Notwithstanding Board of Directors of the foregoingCompany, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate as determined in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted good faith by a bona fide written proposal to majority vote of the Board of Directors of the Company relating or the Special Committee thereof, following consultation with its outside counsel as to legal matters, in response to any proposal for or request to discuss a Competing Transaction from any person that was not solicited by the Company and that did not otherwise result from the breach of this Section 7.05, (w) furnish information with respect to the Company to such transaction which person pursuant to a customary confidentiality agreement; (x) participate in discussions or negotiations with such person regarding any Competing Transaction; (y) conduct "due diligence" inquiries and (z) take all such other actions as the Company's Board of Directors determines (based upon or the advice of independent investment bankers for the Company) represents a superior transaction Special Committee thereof determine are reasonable necessary in order to review or respond to the Merger for proposed Competing Transaction.
(b) Neither the shareholders Company (or any of the Company, and (yits subsidiaries) if nor the Board of Directors of the Company determinesnor any committee thereof shall (i) withdraw or modify, only after receipt or propose to withdraw or modify, in a manner adverse to Merger Sub, the approval, adoption or recommendation by the Board of advice from independent Directors of the Company or any such committee of this Agreement, the Merger or the other Transactions, (ii) approve or recommend, or propose to approve or recommend, any Competing Transaction, (iii) approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other relating to any Competing Transaction or propose or agree to do any of the foregoing, or (iv) submit any Competing Transaction at the Stockholder's Meeting for purposes of voting upon approval and adoption of the Competing Transaction; PROVIDED, HOWEVER, that the Company may, to the extent required by the fiduciary obligations of the Board of Directors of the Company, as determined in good faith by a majority vote of the Board of Directors of the Company or the Special Committee thereof following consultation with its outside counsel as to legal counsel matters, (A) terminate this Agreement pursuant to Section 9.01(g), (B) approve 41 or recommend a Competing Transaction, (C) withdraw or modify its recommendation of the Merger, the Preference Amendment or the execution of this Agreement, (D) submit a Competing Transaction to the stockholders of the Company or (E) take any other action consistent with its fiduciary duties. Notwithstanding the foregoing or Section 7.05(a), the Company and firmits Board of Directors at all times may take all such actions as are reasonably necessary pursuant to Rule 14d-9 or Rule 14e-2 under the Securities Exchange Act.
(c) Subject to the fiduciary obligations of the Board of Directors of the Company or a committee thereof, as determined in good faith by a majority vote of the Board of Directors of the Company or the Special Committee thereof following consultation with its outside counsel as to legal matters, the provisions of Sections 7.05(a) and (b) above and compliance with applicable securities Laws, (a) the Company promptly (and in any event within 48 hours of the relevant event) shall advise Merger Sub orally and in writing of any Competing Transaction and the identity of the person making any such Competing Transaction, and, in each case, the material terms and conditions thereof, including any material amendment or other modifications to the terms of any such Competing Transaction or inquiry and (b) the Company shall keep Merger Sub reasonably apprised of the status of any proposal relating to a Competing Transaction on a current basis.
(d) Contemporaneously with taking any action described in clauses (B), (C) or (D) of Section 7.05(b), the Company shall terminate this Agreement pursuant to Section 9.01(g).
(e) Notwithstanding anything contained herein to the contrary, the initial press release issued by the Company announcing the execution of this Agreement, which press release shall be issued in the manner that is customary for issuing a press release for a transaction such as the Merger or consistent with the past practices of the Company, may include the following language and the inclusion of such language shall not be a breach of any provision of this Section 7.05 and Merger Sub and the Investor Group hereby consent to the inclusion of the following language in any such press release: "Notwithstanding its recommendation and consistent with the terms of the Merger Agreement, the Special Committee of the Company's Board of Directors requested that the Special Committee's financial advisor, CIBC World Markets Corp. be available to receive unsolicited inquiries from any other parties interested in the possible acquisition of the Company. If the Special Committee of the Company's Board of Directors concludes that the failure to provide such information to, or access or to engage in such discussions or negotiations with, such parties would cause the Board of Directors to violate be inconsistent with its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (stockholders, CIBC World Markets Corp., in any event within 24 hours) communicate conjunction with the Special Committee of the Company's Board of Directors, may provide information to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company engage in discussions and negotiations with such parties in connection with any such proposalindicated interest."
(f) Nothing in this Agreement shall require or be deemed to require the Special Committee or the Company's Board of Directors to take or refrain from taking any action which would violate any obligation (including any fiduciary duty) under applicable Law. In taking or refraining from taking such action, discussionthe Special Committee or the Company's Board of Directors shall act in good faith following consultation with outside counsel as to legal matters; PROVIDED, negotiation that, in the event that the Special Committee or inquirythe Company's Board of Directors, as the case may be, shall exercise any of its rights under this Section 7.05(f) with respect to any action taken or any inaction, the Special Committee or the Company's Board of Directors, as the case may be, shall give prompt written notice to Merger Sub and the Investor Group, of such action or inaction (along with a reasonable description thereof) and the identity basis for the exercise of the party making such proposal or inquiry which it may receive in respect of any such transactionright(s).
Appears in 1 contract
Sources: Recapitalization Agreement and Plan of Merger (Westaff Inc)
No Solicitation. Neither (a) Immediately upon execution of this Agreement, the Company nor any of its Subsidiaries or affiliates Stockholders shall (and the Company shall use its best efforts to cause the Company and its officers, directors, employees, investment bankers, attorneys and other agents or representatives to) cease all discussions, negotiations, responses to inquiries and agentsother communications with all third parties who, includingprior to the date hereof, but not limited tomay have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal with the Company.
(b) Prior to termination of this Agreement pursuant to Section 8 hereof, each Stockholder hereby covenants and agrees that he or she will not, and each Stockholder shall use best efforts to cause the Company and its officers, directors, employees, investment bankers, attorneys and accountants, other agents or representatives not to), directly or indirectly, (i) initiate, solicit or encourage, solicitdirectly or indirectly, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, (ii) engage or participate in negotiations or initiate discussions or negotiations with, or provide furnish any information or data to, or take any corporationother action to, partnership, person facilitate any inquiries or other entity or group (other than Mergercomaking any proposal by, any third party relating to an Acquisition Proposal, or (iii) enter into any agreement with respect to any Acquisition Proposal or approve an Acquisition Proposal; provided, that if a Stockholder is a director of its affiliates the Company, such Stockholder may, as such a director (but not as a stockholder), engage in the activities specified in (ii) and (iii), but only if and to the extent that the Company Board may do so pursuant to Section 5.6(b) of the Merger Agreement, and only subject to the conditions and limitations set forth in said Section 5.6(b). In the event that any Stockholder shall receive any Acquisition Proposal, he or representativesshe shall promptly (and in no event later than 24 hours after receipt thereof) concerning furnish to Buyer the identity of the Potential Acquiror, the terms of such Acquisition Proposal, copies of all information requested by the Potential Acquiror, and shall further promptly inform Buyer in writing as to the fact such information is to be provided after compliance with the terms of the preceding sentence. Without limiting the foregoing, each of the Stockholders understands and agrees that any mergerviolation of the restrictions set forth in this Section 4 by any Stockholder who is a director or officer of the Company, tender offer, exchange offer, sale whether or not such Stockholder is purporting to act on behalf of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.its
Appears in 1 contract
No Solicitation. Neither (a) From and after the date hereof until the termination of this Agreement, the Company nor any of and its Subsidiaries or affiliates shall (not, and the Company shall use its best efforts to cause its instruct their respective officers, directors, employees, agents or other representatives and agents(in- cluding, includingwithout limitation, but any investment banker, attorney or accountant retained by the Company or its subsidiaries) (the "Representatives") not limited to,
(i) directly or indirectly solicit, ini- tiate, or encourage (including by way of furnishing non- public information or assistance), or take any other action to facilitate, any inquiries or proposals from any person that constitute, or may reasonably be expected to lead to, investment bankersan acquisition, attorneys purchase, merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving 20% or more of the assets or any securities of, any merger consolidation or business combination with, or any public announcement of a proposal, plan, or intention to do any of the foregoing by, the Company or any of its subsidiaries (such transac- tions being referred to herein as "Acquisition Propos- als"),
(ii) enter into, maintain, or continue dis- cussions or negotiations with any person in furtherance of such inquiries or to obtain an Acquisition Proposal,
(iii) agree to or endorse any Acquisition Proposal, or
(iv) authorize or permit the Company's or any of its affiliates' Representatives to take any such action; provided, however, that nothing in this Agreement shall pro- hibit the Company Board from
(A) furnishing information to, and accountants, not to), directly or indirectly, encourage, solicit, participate engaging in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or its subsidiaries pursuant to a merger, consolidation, share exchange, tender offer or other similar transaction, but only to the extent that independent legal counsel (who may be the Company's regu- larly engaged outside legal counsel) advises the Company Board in good faith that failure to furnish such informa- tion or engage in such discussions or negotiations with such person or entity or group (other than Mergercowould be a breach of the fiduciary duties of the Company Board, any provided, that prior to tak- ing such action, the Company Board notifies FSI of its affiliates intentions and obtains an executed confidentiality agree- ment from the appropriate parties substantially similar to the Confidentiality Agreement,
(B) failing to make or representativeswithdrawing or modifying its recommendation referred to in Section 5.14 if the Com- pany Board, after consultation with and based upon the advice of independent legal counsel (who may be the Com- pany's regularly engaged outside legal counsel), deter- mines in good faith that such action is necessary for the Company board to comply with its fiduciary duties to stockholders under applicable law, and
(C) concerning disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any merger, tender offer, exchange offeror taking any other legally required action (including, sale without limitation, the making of assetspublic disclosure as may be necessary or advisable under applicable securities laws); and provided further, sale that the Company's or the Board of shares Direc- tors' exercise of capital stock its rights under clause (A), (B) or debt securities or similar transactions involving (C) above shall not constitute a breach by the Company or any Subsidiary, division or operating or principal business unit of this Agreement.
(b) The Company will promptly notify FSI of the Company (an "receipt of any Acquisition Proposal"), the terms and conditions of such proposal and the identity of the person making it. The Company also will promptly notify FSI of any change to or modi- fication of such Acquisition Proposal and the terms and condi- tions thereof.
(c) Subject to the provisions of subsection (b), the Company shall immediately cease and cause its affiliates and its and their Representatives to cease any and all existing activities, discussions or negotiations with any parties (other than FSI) conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingfore- going, and shall use its reasonable best efforts to cause any such parties in possession of confidential information about the Company may furnish information concerning its business, properties that was furnished by or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors behalf of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide return or destroy all 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect possession of any such transactionparty (other than FSI) or in the possession of any Representative of any such party.
Appears in 1 contract
Sources: Merger Agreement (Fisher Scientific International Inc)
No Solicitation. Neither (a) The Company, the Company nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, directors or employees, representatives and agents, including, but not limited to, or investment bankers, attorneys and accountantsattorneys, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person accountants or other entity advisors, agents or group representatives (other than Mergercocollectively, “Representatives”) immediately shall cease and cause to be terminated any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore existing as of the date of this Agreement with respect to any Company Takeover Proposal (as defined in Section 5.02(e)) and, to the extent permitted by the applicable confidentiality or similar agreement governing such activities, discussions or negotiations, require any third parties to such activities, discussions or negotiations to return to the Company or to destroy all confidential information of the Company or any Company Subsidiary. The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representatives of the Company or any Company Subsidiary to, (i) directly or indirectly solicit, initiate or encourage (including by way of furnishing information) the submission of, or take any other action designed to facilitate, any inquiries or the making of any proposal that constitutes or is reasonably expected to lead to any Company Takeover Proposal, (ii) enter into any Company Acquisition Agreement (as defined in Section 5.02(b)) with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal; provided, however, that prior to receipt of the Company Shareholder Approval (the “Company Applicable Period”), the Company may, to the extent required by the fiduciary obligations of the Company Board to the shareholders of the Company under applicable Law, as determined in good faith by a majority of the members of the Company Board after consultation with the Company’s outside counsel, in response to a bona fide written Company Takeover Proposal that is made by a person that the Company Board determines, in good faith, after consultation with the Company’s outside counsel and financial advisors, constitutes or is reasonably expected to result in a Superior Company Proposal that was not solicited by the Company or its Representatives and that did not otherwise result from a breach or a deemed breach of this Section 5.02(a), and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal pursuant to a confidentiality and standstill agreement not less restrictive of the other party than the Confidentiality Agreement (as defined in Section 6.02); provided that such confidentiality and standstill agreement may allow such party to submit to the Company a non-public proposal or offer relating to a Company Takeover Proposal; and (y) participate in discussions with such person and its Representatives regarding any Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.02(a) by the Company including for all purposes of this Section 5.02(a), Section 5.02(b), Section 8.01(c) and Section 8.05(b); provided that the Company shall not be liable for any monetary damage on account of such deemed breach (for the avoidance of doubt, other than any fee due pursuant to Section 6.07(b)) so long as the Company or any Company Subsidiary did not authorize or permit such violation.
(b) Except as contemplated by this Section 5.02, neither the Company Board nor any committee thereof shall (i) (A) recommend the approval or adoption of any Company Takeover Proposal, (B) withdraw or modify, in a manner adverse to Parent, the recommendation to the Company’s shareholders by the Company Board or such committee of this Agreement, the Merger or any other Transactions, (C) recommend that the shareholders of the Company reject this Agreement or (D) resolve, agree or propose publicly to take any of the actions set forth in clauses (A) through (C) above (each such action set forth in this Section 5.02(b)(i) being referred to herein as a “Company Adverse Recommendation Change”), (ii) approve or adopt, or resolve, agree or propose publicly to approve or adopt, any Company Takeover Proposal, (iii) withdraw or modify, or resolve, agree or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or adoption by the Company Board or such committee of this Agreement, the Merger or any other Transactions, (iv) determine that this Agreement or the Merger is no longer advisable to the extent such determination is necessary in order to validly submit the Agreement to the Company’s shareholders at the Company Shareholders Meeting or (v) cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement, joint venture agreement, partnership agreement or any other agreement (each, a “Company Acquisition Agreement”) related to any Company Takeover Proposal (other than a confidentiality and standstill agreement referred to in, and in accordance with, Section 5.02(a)), or resolve, agree or propose publicly to take any such actions. Notwithstanding the foregoing, during the Company Applicable Period, the Company Board may furnish information concerning its businessmake a Company Adverse Recommendation Change, properties or assets to any 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) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to majority of the Board of Directors members of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for in good faith, after consulting with the Company) represents a superior transaction to the Merger for the shareholders of the Company, ’s outside counsel and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firmfinancial advisors, that the failure to provide take such information or access or action would reasonably be likely to engage result in such discussions or negotiations would cause a breach of the fiduciary obligations of the Company Board of Directors to violate its fiduciary duties to the Company's shareholders of the Company under applicable law. Law, and (y)
(1) the Company Board has provided to Parent five business days’ prior written notice of its intent to effect a Company Adverse Recommendation Change (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Adverse Recommendation Change) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Adverse Recommendation Change and (2) the Company Board has provided to Parent advance written notice of such Company Adverse Recommendation Change immediately prior thereto.
(c) The Company shall immediately promptly (but in any event within 24 hourshours of such request for information or receipt of such Company Takeover Proposal) communicate shall advise Parent orally and in writing of any Company Takeover Proposal or any inquiry with respect to Mergerco or that could lead to any Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal or inquiry and the principal terms and conditions of any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status including any change or proposed change to the terms of any proposalsuch Company Takeover Proposal or inquiry, discussion, negotiation (ii) provide to Parent as soon as practicable after receipt or inquiry (delivery thereof with copies of all correspondence and will disclose other written material sent or provided to the Company from any written materials received third party in connection with any Company Takeover Proposal or sent or provided by the Company to any third party in connection with such proposal, discussion, negotiation or inquiryany Company Takeover Proposal and (iii) and the identity provide Parent with advance written notice of any scheduled meeting of the party Company Board to discuss a Company Takeover Proposal.
(d) Nothing contained in this Section 5.02 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 such proposal or inquiry which it may receive any required disclosure to the Company’s shareholders if, in respect the good faith judgment of any such transactionthe Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with its obligations under applicable Law.
(e) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. Neither Until (i) the Company nor Closing Date or (ii) the date of termination of this Agreement pursuant to the provisions of Article IX hereof, as the case may be, Seller will not (and Seller will use its reasonable best efforts not to permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its Seller's officers, directors, employeesagents, representatives or Affiliates to) directly or indirectly, take any of the following actions with any party other than Buyer and agentsits designees:
(a) solicit, includingencourage, but not limited initiate any negotiations or discussions with respect to, investment bankersany offer or proposal to acquire all or any portion of Seller's business and properties or capital stock whether by merger, purchase of assets, tender offer or otherwise;
(b) except as required by law (in the written opinion of outside counsel), including fiduciary duties required by law, disclose any information relating to any potential acquisition of all or any portion of Seller's business and properties or capital stock whether by merger, purchase of assets, tender offer or otherwise to any person other than its attorneys or financial advisors concerning Seller's business and accountantsproperties or afford to any person or entity access to its properties, not books or records;
(c) any negotiations or discussions with respect to, any offer or proposal to acquire all or any portion of Seller's business and properties or capital stock whether by merger, purchase of assets, tender offer or otherwise, except as required by applicable fiduciary duties (in the written opinion of outside counsel) and following written notice to the Buyer (with a duty to promptly update Buyer as such discussions proceed or terminate) of the nature of such discussions including the name of the third party and the terms of the proposal (including price); or
(d) assist or cooperate with any person to make any proposal to purchase all or any part of Seller's capital stock or assets, other than selling products of Seller in the ordinary course of business. In the event Seller shall receive any offer or proposal, directly or indirectly, encourage, solicit, participate of the type referred to in clause (a) or initiate discussions or negotiations with(c) above, or provide any information to, any corporation, partnership, person request for disclosure or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group access pursuant to appropriate confidentiality agreementsclause (b) above, and may negotiate and participate Seller shall immediately inform Buyer in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating writing as to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information offer 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.
Appears in 1 contract
Sources: Asset Purchase Agreement (Interlink Computer Sciences Inc)
No Solicitation. Neither Except as contemplated by Section 5.13, neither Stockholder, the Company nor any of its their respective Subsidiaries or affiliates shall, nor shall (and Stockholder, the Company shall use its best efforts to cause its or any of their respective Subsidiaries or affiliates authorize or permit any of their officers, managing directors, directors, employees, representatives and agents, including, or agents (including but not limited to any investment banker, financial advisor, attorney, accountant or other representative or agent) to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, (a) solicit, participate in initiate, encourage (including by way of furnishing information or initiate discussions or negotiations withassistance), or provide take any information toother action to facilitate, any corporation, partnership, person inquiry or other entity the making of any proposal or group offer (other than Mergerco, including any proposal or offer to any of its affiliates shareholders)
(i) with respect to any acquisition or representatives) concerning sale of all or any mergersignificant portion of the assets of, or any equity interest in (whether newly-issued equity interests or outstanding equity interests), the Company and its Subsidiaries, taken as a whole, or any tender offer (including a self tender offer, ) or exchange offer, sale of assetsmerger, sale of shares of capital stock or debt securities consolidation, business combination, recapitalization, liquidation, dissolution or similar transactions transaction involving the Company or any Subsidiaryof the Company's Subsidiaries or (ii) which could reasonably be expected to impede, division frustrate, prevent, delay or operating nullify any of the transactions contemplated by this Agreement or principal business unit to materially diminish the benefits to Purchaser of the transactions contemplated by this Agreement or (b) enter into or participate in any discussions or negotiations regarding any of the foregoing, or in the furtherance of any inquiries regarding any of the foregoing, or furnish to any other Person any information with respect to its business, properties or assets or any of the foregoing; provided, that the foregoing clauses (a) and (b) shall not prohibit the Company's Supervisory Board or Board of Management from (i) furnishing information concerning the Company and its business, properties or assets to a third party who has made a bona fide written transaction proposal, which is not subject to any material contingencies relating to financing, in response to a request for such information, pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement, so long as neither such request for information nor such transaction proposal was solicited, initiated, encouraged or facilitated in violation of clause (a) above, (ii) engaging in discussions or negotiations with such a third party who has made such a transaction proposal or (iii) following receipt of such a transaction proposal, taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or applicable Dutch Law or disclosing to its shareholders information required by Schedule 14D-9, in each case to the extent permitted by the last sentence of Section 1.8(a); provided, further, that any such action referred to in the foregoing clauses (i) and (ii) may be taken by the Company only if its Board of Management or Supervisory Board, as applicable, shall have concluded in good faith and on the basis of advice (x) from the Company's financial advisors, that such transaction proposal involves consideration to the Company's shareholders that is superior to the Offer Consideration, and (y) from outside counsel that failure to take such action would constitute a breach of the fiduciary duties of such Boards under Dutch Law; and provided, further, that the Company shall not take any of the foregoing 57 50 actions referred to in clauses (i) through (iii) until after providing prior written notice to Purchaser. If the Company or Stockholder or the Board of Management or Supervisory Board of either such party receives an inquiry, proposal or offer relating to any of the foregoing, then the Company or Stockholder, as the case may be, shall orally (within one Business Day) and in writing (as promptly as practicable) inform Purchaser of the terms and conditions of such proposal and the identity of the Person making it. Each of the Company (an "Acquisition Proposal"). The Company and Stockholder agrees that it 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. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors Each of the Company relating and Stockholder agrees that it will take the necessary steps to any such transaction which promptly inform the Board individuals or entities referred to in the first sentence of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders this Section 5.5 of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage obligations undertaken in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionthis Section 5.5.
Appears in 1 contract
Sources: Offer Agreement (Seagram Co LTD)
No Solicitation. Neither (a) The Company agrees that it shall immediately cease and cause to be terminated all existing discussions, negotiations and communications with any third parties with respect to any Acquisition Proposal (as defined in Section 5.1(e) below). From and after the date hereof until the Effective Time or the termination of this Agreement in accordance with Section 7.1, the Company nor any of and its Subsidiaries or affiliates shall (subsidiaries and the Company shall use its best efforts to cause its their respective officers, directors, employees, representatives and agentsrepresentatives, agents or affiliates (including, but not limited towithout limitation, any investment bankersbanker, attorneys and accountantsattorney or accountant retained by the Company or any of its subsidiaries) (collectively, not to)"Representatives") shall not, directly or indirectly, encourage(i) initiate, solicitsolicit or knowingly encourage (including, without limitation, by way of furnishing information), or take any action designed to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal, (ii) enter into any agreement regarding an Acquisition Proposal, (iii) participate in negotiations or initiate discussions or negotiations with, or provide any information or data to, any corporation, partnership, person or other entity or group (other than MergercoParent, Sub or any of its their respective affiliates or representativesRepresentatives) concerning regarding any mergerAcquisition Proposal or (iv) make or authorize any statement, tender offer, exchange offer, sale recommendation or solicitation in support of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease , or otherwise encourage any existing activities, discussions effort or negotiations with attempt by any parties conducted heretofore with respect person to do or seek any of the foregoing. Any violation of the foregoing restrictions by any person 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.
(b) Notwithstanding the foregoing, the Company (i) may permit any person who expresses an Acquisition Proposal Interest to make an Acquisition Proposal to the Board of Directors of the Company, notwithstanding the existence of a standstill obligation which would otherwise restrict the person from making such Acquisition Proposal to the Board of Directors of the Company, if the Board of Directors of the Company with the advice of independent counsel (who may be the Company's regularly engaged independent counsel) determines in good faith that the failure to do so would be inconsistent with the fiduciary duty of the Board of Directors of the Company under applicable law, (ii) may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate a customary confidentiality agreementsagreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated May 15, 2002, entered into between Parent and the Company (the "Confidentiality Agreement") if, and only if, such person has on an unsolicited basis, and in the absence of any violation of this Section 5.1 by the Company or any of its Representatives, submitted an Acquisition Proposal or Acquisition Proposal Interest that constitutes or, that in the good faith opinion of the Company Board of Directors, is reasonably likely to result in a Superior Proposal and (iii) may negotiate and participate in discussions and negotiations with such entity or group person concerning an Acquisition Proposal if, and only if, (x) if such entity or group person has on an unsolicited basis basis, and in the absence of any violation of this Section 5.1 by the Company or any of its Representatives, submitted a bona fide written proposal Superior Proposal to the Company and (y) in the good faith opinion of the Company Board of Directors, only after consultation with independent outside legal counsel to the Company, the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, has determined that the failure to provide such information or access or to engage engaging in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.such
Appears in 1 contract
No Solicitation. Neither the (a) The Company nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will agents shall immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to a Takeover Proposal (as hereinafter defined). The Company shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the foregoing. Notwithstanding making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal or (ii) participate in any discussions or negotiations regarding any Takeover Proposal; provided, however, that if, at any time prior to the foregoing, acceptance for payment of shares of the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group Common Stock pursuant to appropriate confidentiality agreementsthe Merger, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Companyin good faith, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firmconsultation with outside counsel, that the failure it is necessary to provide such information or access or do so in order to engage in such discussions or negotiations would cause the Board of Directors to violate comply with its fiduciary duties to the Company's shareholders under applicable law. The , the Company shall immediately may, in response to an unsolicited Takeover Proposal, and subject to compliance with Section 7.3(c), (A) furnish information with respect to the Company to any Person pursuant to a confidentiality agreement in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received a form approved by the Company in connection with and CompuCom (such proposal, discussion, negotiation or inquiryapproval not to be unreasonably withheld) and (B) participate in negotiations regarding such Takeover Proposal. Without limiting the identity foregoing, it is understood that any violation of the party making restrictions set forth in the preceding sentence by any director or executive officer of the Company or any investment banker, financial advisor, attorney, accountant or other representative of the Company, whether or not such Person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 7.3(a) by the Company. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or inquiry which it may receive in respect offer from any Person relating to any direct or indirect acquisition or purchase of twenty percent or more of the assets of the Company or twenty percent or more of any such transactionclass of equity securities of the Company, any tender offer or exchange offer that if consummated would result in any Person beneficially owning twenty percent or more of any class of equity securities of the Company, any merger, consolidation, business combination, sale of substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the transactions contemplated by this Agreement, or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would reasonably be expected to dilute materially the benefits to CompuCom of the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Dataflex Corp)
No Solicitation. Neither the (a) The Company nor any of its Subsidiaries or affiliates shall (will, and the Company shall use its best efforts to will cause its Affiliates and its and their respective officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives and agentsagents to, includingimmediately cease any existing discussions or negotiations, but not limited toif any, with any parties (other than Purchaser and Parent) with respect to any Company Takeover Proposal. The Company shall not, and it shall ensure that its Affiliates and its or their respective officers, directors, employees, investment bankers, attorneys financial advisors, attorneys, accountants and accountants, not to)other representatives or agents do not, directly or indirectlyindirectly (i) solicit, initiate or encourage, solicitor take any other action designed or reasonably likely to facilitate, any inquiries with respect to, or the making of any proposal which constitutes or reasonably may give rise to, any Company Takeover Proposal, (ii) provide any information with respect to the Company to any Person, other than Purchaser, relating to a possible Company Takeover Proposal by any Person, (iii) 369958_13 enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement constituting or related to, or reasonably likely to lead to, any Company Takeover Proposal (each, a “Company Acquisition Agreement”), (iv) participate in or initiate any discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving whether initiated by the Company or not) regarding any SubsidiaryCompany Takeover Proposal, division or operating (v) make or principal business unit authorize any statement, recommendation or solicitation in support of any possible Company Takeover Proposal; provided, however, that if, at any time prior to the date on which Purchaser purchases Shares pursuant to the Offer (the “Offer Completion Date”), (1) the Company has received an unsolicited Company Takeover Proposal that did not result from a breach of this Section 5.5(a), and (2) the Company Board determines in good faith, based upon and in conformity with the written opinion of its independent financial advisors and independent outside legal counsel, that (A) such Company Takeover Proposal constitutes a Superior Proposal, and (B) failure to do so would result in a breach of its fiduciary duties to the Shareholders under Delaware Law, then the Company may, in response to such Superior Proposal, (x) furnish information with respect to the Company and each of its Subsidiaries to the Person making such Company Takeover Proposal pursuant to a customary confidentiality agreement not more favorable to the recipient of such information than the Confidentiality Agreement (it being understood that such confidentiality agreement shall not prohibit disclosure to Purchaser of any of the information and materials required to be disclosed or provided to Purchaser pursuant to Section 5.5(c)), and (y) participate in negotiations with such Person regarding such Superior Proposal to the extent required by the fiduciary duties of the Company (an "Acquisition Proposal")Board regarding such Company Takeover Proposal under Delaware Law. The Company will immediately cease Without limiting the foregoing, it is understood that any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any violation of the foregoingrestrictions set forth in this Section 5.5(a) by any director, officer or employee of the Company or the Company’s Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of the Company or the Company’s Subsidiaries shall be deemed to be a breach of this Section by the Company.
(b) Except as expressly permitted by this Section 5.5(b), neither the Company Board nor any committee thereof may (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Company Board or such committee of the Offer, the Merger or this Agreement, (ii) approve or recommend, propose publicly to approve or recommend, or otherwise permit or cause the Company to accept or enter into any Company Takeover Proposal or Company Acquisition Agreement, (iii) release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, or (iv) agree or resolve to take actions set forth in clauses (i) through (iii) of this sentence. Notwithstanding the foregoing, in the event that the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate Board determines in discussions and negotiations with such entity or group concerning an Acquisition Proposal good faith that (x1) if such entity or group the Company has on received an unsolicited basis submitted Superior Proposal that did not result from a bona fide written proposal to the Board breach of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the CompanySection 5.5(a), and (y2) if based upon and in conformity with the Board written opinion of Directors of the Company determinesits independent outside legal counsel, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage do so would result in such discussions or negotiations would cause the Board a breach of Directors to violate its fiduciary duties to the Company's shareholders Shareholders under applicable lawDelaware Law, the Company Board may withdraw or modify its approval or recommendation of the Offer, the Merger or this Agreement, approve or recommend such Superior Proposal, or terminate this Agreement pursuant to Section 7.3(c); provided, however, that the Company may not exercise its right to terminate this Agreement pursuant to this Section 5.5 or Section 7.3(c) until after the fifth (5th) Business Day following Purchaser’s receipt of written notice from the Company advising Purchaser that the Company Board intends to take such action and specifying the reasons therefor, including, without limitation, the information and materials to be provided 369958_13 pursuant to Section 5.5(c) relating to the Superior Proposal that is the basis of the Company Board’s proposed action. Any material amendment to the terms of any Superior Proposal shall require a new notice to Purchaser and a new five (5) Business Day period. The Company Board shall immediately take into account any material changes to the terms of this Agreement proposed by Purchaser in response to any such notice in determining whether to terminate this Agreement and shall negotiate in good faith with Purchaser during the period prior to any such termination.
(c) In addition to the obligations of the Company set forth in Sections 5.5(a) and 5.5(b), the Company will (i) promptly, and in any event within 24 hourstwo (2) communicate to Mergerco the terms Business Days, advise Purchaser orally and in writing of any proposalrequest for information or of any Company Takeover Proposal, discussion, negotiation the financial and other material terms and conditions of such request or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) Takeover Proposal and the identity of the party Person making such proposal request or Company Takeover Proposal, (ii) keep Purchaser reasonably informed of the status and details (including amendments or proposed amendments) of any and all such requests or Company Takeover Proposals, and (iii) provide to Purchaser as soon as practicable after receipt or delivery thereof (and in any event within two (2) Business Days) copies of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Company Takeover Proposal or inquiry which or sent or provided by the Company to any third party in connection with any Company Takeover Proposal or inquiry.
(d) Nothing contained in this Section 5.5 will prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act; provided, however, that neither the Company nor the Company Board nor any committee thereof may, except as expressly permitted by this Section 5.5, withdraw or modify, or propose publicly to withdraw or modify, its position with respect to the Offer, this Agreement or the Merger or approve or recommend, or propose publicly to approve or recommend, a Company Takeover Proposal.
(e) Nothing contained in this Section 5.5 shall permit the Company to enter into any Company Acquisition Agreement or other agreement with respect to Company Takeover Proposal during the term of this Agreement, it may receive being agreed that, during the term of this Agreement, the Company shall not enter into any agreement with any Person that provides for, or in respect of any such transactionway facilitates, a Company Takeover Proposal, other than a confidentiality agreement containing terms no more favorable to the Person making the Company Takeover Proposal than those applicable to Purchaser under the Confidentiality Agreement.
Appears in 1 contract
No Solicitation. Neither Prior to the Termination Date, Stockholder, in his capacity as a stockholder of the Company and not in any other capacity, agrees that neither it nor any of its Subsidiaries or affiliates shall (officers and the Company directors shall, and that it shall use its best commercially reasonable efforts to cause its officers, directors, employees, representatives agents and agentsadvisors (including any attorneys, including, but not limited tofinancial advisors, investment bankers, attorneys and bankers or accountants, ) not to), directly or indirectly, encourage: (i) initiate, solicit, knowingly encourage or otherwise facilitate the making, submission or announcement of, any Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information of the Company with respect to, or take any other action to facilitate any inquiries regarding or the making of any Acquisition Proposal, or (iii) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby; provided, that at any time prior to the adoption of the Merger Agreement by the Company Stockholders (as defined in the Merger Agreement), so long as the Acquisition Proposal is not as a result of a breach of Section 5.2 of the Merger Agreement by the Company, Stockholder may, in response to a written Acquisition Proposal received by the Company, participate in or initiate discussions or negotiations with, request clarifications from, or provide any furnish information to, any corporationPerson which makes such an Acquisition Proposal, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving but only if the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, is permitted to participate in discussions or negotiations with, request clarifications from, or furnish information to, such Person in accordance with any parties conducted heretofore with respect to any the terms of Section 5.2 of the foregoing. Notwithstanding the foregoingMerger Agreement; provided, the Company may furnish information concerning its businesshowever, properties that nothing in this Section 2.01 shall prevent Stockholder, in his or assets to any corporation, partnership, person her capacity solely as a director 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders executive officer of the Company, and (y) if the Board of Directors from engaging in any activity permitted pursuant to Section 5.2 of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage Merger Agreement solely in such discussions or negotiations would cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactioncapacity.
Appears in 1 contract
Sources: Voting Agreement (Animal Health International, Inc.)
No Solicitation. Neither (a) Subject to Section 5.13(b) hereof, from and after the Company date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, neither PBI nor any Person acting on behalf of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)PBI shall, directly or indirectly, encourage, (a) solicit, participate in initiate or initiate respond to discussions or engage in negotiations withwith any Person (whether such negotiations are initiated by PBI or otherwise) or take any other action intended or designed to facilitate the efforts of any Person, or provide any information toother than CBSI, any corporationrelating to the possible acquisition, partnership, person recapitalization or other entity business combination involving PBI or group (other than Mergerco, any of its affiliates or representatives) concerning any Subsidiaries (whether by way of merger, tender offerpurchase of capital stock, exchange offer, sale purchase of assets, sale assets or otherwise) or any material portion of shares of its capital stock or debt securities or similar transactions involving the Company or assets (with any Subsidiarysuch efforts by any such Person, division or operating or principal business unit of the Company (including a firm proposal to make such an acquisition, to be referred to as "Acquisition Takeover Proposal"). The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore (b) provide non-public information with respect to PBI or any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets Subsidiaries to any corporationPerson, partnershipother than CBSI and its professional advisors or PBI's professional advisors, person or (c) enter into an agreement with any Person, other entity than CBSI, providing for a possible Takeover Proposal. If PBI receives any offer 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the CompanyTakeover Proposal, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company PBI shall immediately (in any event within 24 hours) communicate notify CBSI thereof, including information as to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making any such offer or proposal and the specific terms of such offer or proposal, as the case may be.
(i) Notwithstanding anything to the contrary contained in Section 5.13(a), prior to the Closing or the termination of this Agreement in accordance with its terms, PBI may, to the extent the Board of Directors of PBI determines, in good faith, after consultation with outside legal counsel, that the Board's fiduciary duties require it to do so, participate in discussions or negotiations with, and, subject to the requirements of Section 5.13(c), furnish non-public information, and afford access to the properties, books or records of PBI or any of its Subsidiaries to any Person after such Person has delivered to PBI in writing, an unsolicited bona fide Takeover Proposal with respect to PBI or any of its Subsidiaries (which has not been withdrawn) which the Board of Directors of PBI in its good faith judgment determines, after reasonable inquiry and consultation with its financial advisor (i) would be reasonably likely to result in a transaction more favorable than that contemplated by this Agreement to the shareholders of PBI (which judgment must be reasonable), and (ii) that the Person making such Takeover Proposal is financially capable of consummating such Takeover Proposal or that the financing necessary to consummate such Takeover Proposal, to the extent required, is then committed or is capable of being obtained by such Person (a "Superior Proposal"). In addition, notwithstanding the provisions of Section 5.13(a) above, in connection with a submitted, written bona fide Takeover Proposal or potential Takeover Proposal, PBI shall refer any third party to this Section 5.13 or make a copy of this Section 5.13 available to such third party.
(ii) In the event PBI or any of its Subsidiaries receives a Superior Proposal, nothing contained in this Agreement (but subject to the terms of this Section 5.13(b)) will prevent the Board of Directors of PBI from recommending such Superior Proposal to the shareholders of PBI, if the Board determines, in good faith, after consultation with outside legal counsel, that such action is required by its fiduciary duties; in such case, the Board of Directors of PBI may withdraw, modify or refrain from making its recommendations set forth in the relevant sections in this Agreement, and, to the extent it does so, PBI may receive in respect refrain from soliciting proxies to secure the affirmative vote of its shareholders as contemplated by Section 5.1; provided, however, that PBI shall -------- ------- (A) provide CBSI at least 48 hours prior notice of any meeting of the Board of Directors of PBI at which such transactionBoard of Directors is reasonably expected to consider a Superior Proposal, (B) not recommend to its shareholders a Superior Proposal for a period of not less than the greater of two full business days and 48 hours after CBSI's receipt of a copy of such Superior Proposal and the identity of the third party, and (C) not enter into a definitive agreement relating to such Superior Proposal unless CBSI fails to match the terms of the Super Proposal within the greater of two full business days and 48 hours after CBSI's receipt of a copy of such Superior Proposal and the identity of the third party; and provided, further, that unless this Agreement is terminated pursuant to Article VII, nothing contained in this Section 5.13(b) shall limit PBI's obligation to hold and convene a special meeting of its shareholders (regardless of whether the recommendation of the Board of Directors of PBI shall have been withdrawn, modified or not yet made) or to provide the shareholders of PBI with material information relating to such meeting.
(c) Notwithstanding anything to the contrary herein, neither PBI nor any of its Subsidiaries shall provide any non-public information to a third party unless: (x) PBI provides such non-public information pursuant to a nondisclosure agreement with terms regarding the protection of oral or written confidential information at least as restrictive as such terms in the confidentiality agreement heretofore entered into by the parties hereto; and (y) such non-public information has been previously delivered or made available to CBSI.
Appears in 1 contract
No Solicitation. Neither During the Company nor any Term of its Subsidiaries this Agreement, except as permitted by Section of 5.5(b) of the Merger Agreement and solely to the extent of and in the Stockholder’s capacity as an officer or affiliates shall (and director of SWAT, the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to)Stockholder will not, directly or indirectly, encourageand will instruct the Stockholder’s agents, representatives, affiliates, employees, officers and directors not to, directly or indirectly, solicit, participate in initiate or initiate discussions or negotiations withknowingly encourage (including by way of furnishing nonpublic information), or provide take any information other action knowingly to facilitate, any inquires or the making of any proposal or offer (including, without limitation, any proposal or offer to the Stockholders of SWAT) that constitutes, or may reasonably be expected to lead to, any corporationacquisition of SWAT (an “Acquisition”), partnership, or enter into or maintain or continue discussion or negotiate with any person or other entity in furtherance of such inquires to obtain an Acquisition, or group agree to or endorse an Acquisition, or authorize or permit any of the agents, representatives, affiliates (other than Mergercoin the case of a limited partnership, the limited partners hereof), employees, officers and directors, to take any such action, for each Stockholder who is also an officer or director of SWAT. Stockholder shall notify PepperBall immediately after receipt by Stockholder or any of its affiliates Stockholder’s agents, representatives, affiliates, employees, officers and directors, of any proposal for, or representatives) concerning any mergerinquiry respecting, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company an Acquisition or any Subsidiaryrequest for nonpublic information in connection with such a proposal or inquiry, division or operating for access to the properties, books or principal business unit records of SWAT by any person or entity that informs or has informed SWAT or Stockholder that it is considering making or has made such a proposal or inquiry. Such notice to PepperBall shall indicate in reasonable detail the identity of the Company (an "Acquisition Proposal")person making the proposal or inquiry and the terms and conditions of such proposal or inquiry. The Company will Stockholder immediately shall cease any and cause to be terminated all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any an Acquisition, except in respect of the foregoing. Notwithstanding the foregoingtransactions contemplated by this Agreement, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board extent that such Stockholder is also an officer or director of Directors SWAT. Nothing contained in this Section 3(g) shall restrict, limit or prohibit the officers, directors, employees and principal stockholders of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice SWAT from independent legal counsel to the Company and firm, that the failure to provide such information or access or to engage in such discussions or negotiations would cause the Board of Directors to violate its complying with their fiduciary duties to the Company's shareholders under applicable law. The Company shall immediately (in any event within 24 hoursstockholders of SWAT including, without limitation, the provisions of Section 5.5(b) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionMerger Agreement.
Appears in 1 contract
Sources: Voting Agreement (Security With Advanced Technology, Inc.)
No Solicitation. Neither (a) None of the Company, its Subsidiaries or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of the Company nor or any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectlyindirectly (i) solicit, initiate, knowingly encourage, solicit, participate in facilitate (including by way of furnishing nonpublic information) or initiate discussions take any other action designed to facilitate any inquiries or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning proposals regarding any merger, tender offershare exchange, exchange offerconsolidation, sale of assets, sale of shares of capital stock or debt securities (including, without limitation, by way of a tender offer) or similar transactions involving the Company or any Subsidiaryof its Subsidiaries that, division or operating or principal business unit if consummated, would constitute a Company Alternative Transaction (any of the Company (an "Acquisition Proposal"). The Company will immediately cease foregoing inquiries or proposals, including the indication of any existing activities, discussions or negotiations with any parties conducted heretofore with respect intention to propose any of the foregoing, being referred to herein as a “Company Alternative Proposal”), (ii) participate in any discussions or negotiations regarding a Company Alternative Transaction or (iii) enter into any agreement regarding any Company Alternative Transaction. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company shall be permitted, prior to the meeting of Company shareholders to be held pursuant to Section 6.3, and subject to compliance with the other terms of this Section 6.11 and to first entering into an agreement with the Person proposing such Company Alternative Proposal on terms substantially similar to, and no less favorable to the Company than (except that the standstill provisions of such agreement may permit a Person proposing to make such Company Alternative Proposal to make a Company Alternative Proposal, and to communicate any revision or modification of the Company Alternative Proposal, to the Company or its Board of Directors), those contained in the Confidentiality Agreement prior to furnishing or affording access to any nonpublic information or data with respect to the Company or any of its Subsidiaries or otherwise relating to any a Company Alternative Proposal, and providing Parent with a copy of such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents agreement, to consider and participate in discussions with respect to a superior transaction to the Merger for the shareholders of bona fide Company Alternative Proposal received by the Company, if and only to the extent that (yi) if the Board of Directors of the Company determines, only first reasonably determines in good faith (A) such Company Alternative Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) after receipt of advice from independent consultation with outside legal counsel that failure to do so would be inconsistent with its fiduciary duties, and (ii) the Company and firm, that the failure to provide has provided Parent with at least two (2) business days’ prior notice of 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 shareholders under applicable lawdetermination. The Company shall immediately promptly provide to Parent any non-public information (in any event within 24 hourswhether written or oral) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by regarding the Company in connection with or its Subsidiaries provided to any other Person which was not previously provided to Parent, such proposal, discussion, negotiation or inquiry) and additional information to be provided no later than the identity date of the party making provision of such proposal or inquiry which it may receive in respect of any information to such transactionother party.
Appears in 1 contract
No Solicitation. Neither From the date hereof through the Closing or the earlier termination of this Agreement, neither the Company nor any the Principal Shareholder shall, and each of its Subsidiaries or affiliates them shall cause each of their respective Representatives (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited towithout limitation, investment bankers, attorneys and accountants), not to), directly or indirectly, encourageenter into, solicit, initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in or initiate discussions or any negotiations with, or provide any information to, or otherwise cooperate in any other way with, any corporation, partnership, person or other entity or group (group, other than MergercoInCard and its Representatives, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assetsall or a portion of the Contributed Assets, sale or of any shares of capital stock of the Company, other than the sale of any capital stock of the Company representing a minority interest in the Company that would not adversely affect the ability of the Company to consummate the transactions contemplated by this Agreement or debt securities the Ancillary Agreements, or any merger, consolidation, liquidation, dissolution or similar transactions transaction involving the Company (each such transaction being referred to herein as a “Proposed Acquisition Transaction”). Neither the Company nor the Principal Shareholder shall, directly or indirectly, through any Subsidiaryofficer, division director, employee, Representative, agent or operating otherwise, solicit, initiate or principal business unit encourage the submission of any proposal or offer from any Person or entity relating to any Proposed Acquisition Transaction or participate in any negotiations regarding, or furnish to any other person any information with respect to the Company for the purposes of, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to seek or effect a Proposed Acquisition Transaction. Each of the Company (an "Acquisition Proposal"). The Company will immediately cease any existing activities, and the Principal Shareholder hereby represents and warrants that it is not now engaged in discussions or negotiations with any parties conducted heretofore party other than InCard with respect to any of the foregoing. Notwithstanding The Company and the foregoingPrincipal Shareholder shall promptly advise such prospective purchaser or soliciting party, by written notice (with a copy to InCard) of the Company may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, terms of this Section 5.4 and may negotiate will promptly notify InCard (orally and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal (xwriting) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction which the Board offer, or any inquiry or contact with any Person with respect thereto, is made and shall provide InCard with a copy of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Companysuch offer, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussionincluding, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposalwithout limitation, discussion, negotiation or inquiry) and the identity of the party making such proposal prospective purchaser or inquiry which it may receive in respect soliciting party, and shall keep InCard informed on the status of any negotiations regarding such transactionoffer. Each of the Company and the Principal Shareholder agrees not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company or the Principal Shareholder is a party.
Appears in 1 contract
Sources: Asset Contribution Agreement (Innovative Card Technologies Inc)
No Solicitation. Neither Except for the Company transactions --------------- contemplated by this Agreement until the Closing Date, such Seller and its Affiliates shall not, nor shall such Seller or its Affiliates authorize or permit any of its Subsidiaries officer, director or affiliates shall (and the Company shall use its best efforts to cause its officersemployee of, directorsor any investment banker, employeesattorney, representatives and agentsaccountant, includingor other representative retained by, but not limited such Seller or such Affiliates to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, initiate, encourage or entertain (including by way of furnishing information) discussions, inquiries, offers or proposals or participate in or initiate any discussions or negotiations withfor the purpose or with the intention of leading to any proposal or offer from any Person which constitutes or concerns, or provide any information may reasonably be expected to lead to, any corporation, partnership, person transaction involving any proposal or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company offer to acquire all or any Subsidiary, division or operating or principal business unit portion of the Company Transferred Assets. Such Seller shall promptly (an "Acquisition Proposal")and in any event within two Business Days) notify Buyer in writing of any inquiry they receive from any Person (and shall set forth in such notice the identity of such Person) with respect to the subject matter of the first sentence of this Section 9.2. The Company Each Seller will immediately ----------- cease and cause to be terminated any existing activities, discussions or negotiations with any parties Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may furnish information concerning its business, properties or assets to any 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 Each Seller will (x) if promptly request all Persons who heretofore have executed a confidentiality agreement in connection with such entity Persons' consideration of acquiring the Transferred Assets to return or group has destroy all confidential information heretofore furnished to such Persons by or on an unsolicited basis submitted a bona fide written proposal to the Board behalf of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, Seller and (y) if enforce all obligations under such confidentiality agreements. At the Board of Directors of the Company determinesClosing, only after receipt of advice from independent legal counsel each Seller will assign to Buyer all its rights under all confidentiality agreements relating to the Company and firmsale of or other transactions involving the Transferred Assets. Upon the Closing, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and Confidentiality Agreement will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transactionbe terminated.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
No Solicitation. Neither the Company nor any of The Company, its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their --------------- respective officers, directors, employees, representatives and agentsagents (i) shall immediately cease any existing discussions or negotiations, includingif any, but with any parties with respect to any acquisition (other than the -29- transactions contemplated by this Agreement or the Company Acquisitions) of all or any material portion of the assets of, or any equity interest in, the Company or any of the Company Subsidiaries or any business combination with the Company or any of the Company Subsidiaries, (ii) shall not limited tosolicit, investment bankers, attorneys and accountants, not to), directly or indirectlyinitiate, encourage, solicit, participate or furnish information in response to any inquiries or initiate discussions or negotiations withproposals that constitute, or provide any information could reasonably be expected to lead to, any corporation, partnership, person a proposal or other entity or group (other than Mergerco, any of its affiliates or representatives) concerning any offer for a merger, tender offerconsolidation, exchange offerbusiness combination, sale of substantial assets, sale of shares of capital stock or debt securities (including without limitation by way of a tender offer or similar transactions involving the Company or Company, other than the transactions contemplated by this Agreement) (any Subsidiary, division or operating or principal business unit of the Company (foregoing transactions being referred to in this Agreement as an "Acquisition ProposalTransaction"). The Company will immediately cease ) (iii) shall not engage in negotiations or discussions concerning, or provide any existing activitiesnon-public information to any person or entity relating to, discussions any Acquisition Transaction, or negotiations with (iv) shall not agree to, approve or recommend any parties conducted heretofore Acquisition Transaction; except, with respect to any clauses (ii) (as to the furnishing of the foregoing. Notwithstanding the foregoinginformation only) (iii) and (iv), the Company may furnish information concerning its business, properties or assets to any 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 (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to where the Board of Directors of the Company relating to any such transaction which has received the Board written opinion of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction Irell & ▇▇▇▇▇▇▇ LLP to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, effect that the failure to provide such information or access or to engage in such discussions or negotiations would cause of the Board of Directors to violate its so act would constitute a violation of the Board of Directors' fiduciary duties responsibilities to the holders of the Company Common Stock under the DGCL (it being understood that for this purpose, the failure to respond to an Acquisition Proposal which in the judgment of the Company's Board of Directors and BZW is superior, from a financial point of view, to the Company's shareholders under applicable lawstockholders may be deemed to be a breach of such fiduciary duty). The If the Company shall immediately (in nevertheless receive any event within 24 hours) communicate indications of interests or proposals with respect to Mergerco the terms any Acquisition Transactions, it shall provide a copy of any proposal, discussion, negotiation or inquiry (and will disclose any such written materials received proposal to the Purchaser immediately after receipt thereof by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity any of the party making such proposal its representatives or inquiry which it may receive in respect of any such transactionagents.
Appears in 1 contract
No Solicitation. Neither (a) Except to the extent permitted by the terms of this Section 5.4, from the date hereof until the earlier of the approval and adoption of this Agreement and approval of the Merger by the Company's stockholders or the termination of this Agreement, the Company and its subsidiaries shall not, nor will they authorize or permit any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its their respective officers, directors, employeesaffiliates or employees or any investment banker, representatives and agentsattorney, includingaccountant, but not limited or other advisor or representative retained by any of them ("Representatives") to, investment bankers, attorneys and accountants, not to), directly or indirectly: (i) solicit, initiate, knowingly or intentionally encourage, solicitfacilitate or induce the making, submission or announcement of any Acquisition Proposal (as defined in Section 5.4(d) hereof); (ii) participate in any negotiations or initiate discussions 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 Acquisition Proposal; (iii) subject to the terms of Section 5.4(c) hereof, approve, endorse or recommend any Acquisition Proposal; or (iv) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction (as defined in Section 5.4(d) hereof); provided, however, that the terms of this Section 5.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company and its subsidiaries to, entering into a confidentiality agreement with or entering into negotiations or discussions with, any person or provide group in response to an Acquisition Proposal submitted by such person or group (and not withdrawn) if: (1) neither the Company nor its subsidiaries nor any of their respective Representatives shall have violated any of the restrictions set forth in this Section 5.4 in connection with such Acquisition Proposal; (2) the Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law; (3) (x) at least two (2) business days prior to furnishing any such nonpublic information to, any corporationor entering into negotiations or discussions with, partnership, such person or other entity group, the Company gives Parent written notice of the identity of such person or group and of the Company's intention to furnish nonpublic information to, or enter into negotiations or discussions with, such person or group, and (other than Mergerco, any of its affiliates or representativesy) concerning any merger, tender offer, exchange offer, sale of assets, sale of shares of capital stock or debt securities or similar transactions involving the Company receives from such person or any Subsidiary, division group an executed confidentiality agreement containing limitations on the use and disclosure of all nonpublic written and oral information furnished to such person or operating group by or principal business unit on behalf of the Company which are no less favorable to the Company than the Confidentiality Agreement; and (4) contemporaneously with furnishing any such nonpublic information to such person or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). In addition to the foregoing, the Company shall (i) provide Parent with at least forty-eight (48) hours prior written notice (or such lesser prior notice as provided to the members of the Board, but in no event less than eight hours) of a meeting of the Board at which the Board is reasonably expected to consider a Superior Offer and (ii) provide Parent with at least two (2) business days prior written notice of a meeting of the Board at which the Board is reasonably expected to recommend a Superior Offer to its stockholders and together with such notice a copy of any definitive documentation relating to such Superior Offer and such other documentation reflecting the terms of the Superior Offer as being considered by the Board. The terms of this Section 5.4 shall not prohibit the Company from taking any action necessary in order to comply with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, provided that neither the Company nor its Board shall, except as permitted by Section 5.4(c), propose to withdraw, amend, change or modify its unanimous recommendation of this Agreement and the Merger, or to approve or recommend, or propose to publicly approve or recommend, an "Acquisition Proposal"). The Company will and its subsidiaries shall immediately cease any and all existing activities, negotiations or discussions or negotiations with any parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer or director of the Company may furnish or any of its subsidiaries or any Representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
(b) In addition to the obligations of the Company set forth in Section 5.4 hereof, the Company as promptly as practicable shall advise Parent orally (within one business day) and in writing (within two business days) of any request received by the Company for nonpublic information concerning its business, properties or assets which the Company reasonably believes would lead to any 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 (x) if or of any Acquisition Proposal, or any inquiry received by the Company with respect to or which the Company reasonably believes would lead to any Acquisition Proposal, the material terms and conditions of such entity request, Acquisition Proposal or inquiry, and the identity of the person or group has on an unsolicited basis submitted a bona fide written proposal making any such request, Acquisition Proposal or inquiry. The Company shall keep Parent informed in all material respects of the status and details (including material amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry.
(c) Nothing in this Agreement shall prevent the Board from withdrawing, amending, changing or modifying its unanimous recommendation in favor of the Transactions at any time prior to the Board approval and adoption of Directors this Agreement and approval of the Company relating to any such transaction which Merger by the Company's stockholders, but the Board of Directors determines may do so only to terminate this Agreement in accordance with Section 7.1(e) hereof and only if (based upon the advice of independent investment bankers for the Companyi) represents a superior transaction to the Merger for the shareholders of the Company, and Superior Offer (yas defined in Section 5.4(d) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel hereof) is made to the Company and firmis not withdrawn, and, concurrent with the termination of this Agreement pursuant to Section 7.1(e) hereof, the Board shall cause the Company to enter into a definitive agreement with respect to such Superior Proposal, (ii) neither the Company nor any of its subsidiaries nor any of their respective Representatives shall have violated any of the restrictions set forth in Section 5.4 hereof in connection with such Superior Offer, and (iii) the Board concludes in good faith, after consultation with its outside counsel, that in light of such Superior Offer the failure to provide withdrawal, amendment, change or modification of such information or access or to engage recommendation is required in such discussions or negotiations would cause order for the Board of Directors to violate comply with its fiduciary duties to the Company's shareholders stockholders under applicable law.
(d) For purposes of this Agreement, (i) "Acquisition Proposal" shall mean any offer or proposal (other than an offer or proposal by Parent or Merger Sub) relating to any Acquisition Transaction. The For the purposes of this Agreement, (ii) "Acquisition Transaction" shall mean any transaction or series of related transactions other than the Transactions involving: (A) any acquisition or purchase from the Company shall immediately 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 fifteen percent (15%) interest in the total outstanding voting securities of the Company or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any event within 24 hoursperson or "group" (as defined under Section 13(d) communicate of the Exchange Act and the rules and regulations thereunder) beneficially owning fifteen percent (15%) or more of the total outstanding voting securities of the Company or any of its subsidiaries or any merger, consolidation, business combination or similar transaction involving the Company (excluding the ISAC Sale) pursuant to Mergerco which the stockholders of the Company immediately preceding such transaction hold less than eighty five percent (85%) of the equity interests in the surviving or resulting entity of such transaction; (B) any sale, lease, exchange, transfer, license (other than in the ordinary course of business and consistent with past practice), acquisition or disposition of more than fifteen percent (15%) of the assets of the Company; or (C) any liquidation or dissolution of the Company, and (iii) "Superior Offer" shall mean an unsolicited, bona fide written offer made by a third party to consummate any Acquisition Proposal on terms that the Board determines, in its reasonable judgment (after consultation with a reputable financial advisor) to be more favorable to the Company stockholders from a financial point of view than the terms of the Transactions; provided, however, that any proposal, discussion, negotiation or inquiry (such offer shall not be deemed to be a "Superior Offer" if any financing required to consummate the transaction contemplated by such offer is not committed and will disclose any written materials received by is not likely in the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity reasonable judgment of the Board to be obtained by such third party making such proposal or inquiry which it may receive in respect of any such transactionon a timely basis.
Appears in 1 contract
No Solicitation. Neither (a) From and after the Company date hereof until the Effective Time or the termination of this Agreement in accordance with Section 7.1, neither the Company, nor any of its Subsidiaries or affiliates shall (and the Company shall use its best efforts to cause its respective officers, directors, employees, representatives and agentsrepresentatives, includingagents or affiliates (including any investment banker, attorney or accountant retained by the Company or the Special Committee but excluding any affiliate of the Company that is not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group controlled by the Company (other than Mergercodirectors of the Company)) will directly or indirectly initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action with the intention of facilitating, any inquiries or the making or submission of any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any person or group in furtherance of such inquiries or to obtain or induce any person or group to make or submit an Acquisition Proposal, or agree to or endorse any Acquisition Proposal, or assist or participate in, facilitate or encourage, any effort or attempt by any other person or group to do or seek any of the foregoing, or authorize or permit any of its officers, directors or employees or any of its affiliates or representatives) concerning any mergerinvestment banker, tender offerfinancial advisor, exchange offerattorney, sale accountant or other representative or agent retained by it to take any such action; provided, however, that nothing contained in this Agreement shall -------- ------- prohibit the Board of assets, sale Directors of shares of capital stock or debt securities or similar transactions involving the Company or the Special Committee or the Representatives from furnishing information to or entering into discussions or negotiations with any Subsidiaryperson or group that makes an unsolicited written, division bona fide Acquisition Proposal, if, and only to the extent that (i) the Special Committee determines in good faith by a majority vote, after consultation with the Special Committee Financial Advisor (or operating other nationally reputable financial advisor) and with independent legal counsel that such proposal is, or principal business unit is reasonably likely to lead to, a Superior Proposal (provided that the Special Committee or its advisors shall be permitted to contact such third party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the likelihood of consummation), (ii) the Special Committee determines in good faith by a majority vote after consultation with its outside legal counsel that the failure to negotiate, or otherwise engage in discussions, with such third party would be inconsistent with the Board's fiduciary duties under applicable law, and (iii) such person or group, prior to the disclosure of any non-public information, enters into a confidentiality agreement with the Company that is not, in any material respect, less restrictive as to such person or group than the Confidentiality Agreement (as defined in Section 5.3) in terms of confidentiality and standstill restrictions and which does not contain exclusivity provisions which would prevent the Company from complying with its obligations hereunder. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.1 by any officer, director, employee or affiliate of the Company (except an affiliate who is not controlled by the Company (other than a director)) or any investment banker, attorney, accountant or other advisor, agent or representative of the Company or the Special Committee, whether or not such person is purporting to act on behalf of the Company or its directors or otherwise, shall be deemed to be a breach of this Section 5.1 by the Company.
(b) Except as expressly permitted by this Section 5.1, neither the Board of Directors of the Company nor the Special Committee (or any other committee thereof) shall (i) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (ii) cause the Company to accept such Acquisition Proposal and/or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal"; provided, however, ---------------------- -------- ------- that the Board of Directors of the Company (acting on the recommendation of the Special Committee) may take such actions if, and only to the extent that (A) such Acquisition Proposal is a Superior Proposal, (B) the Special Committee determines in good faith by a majority vote, after consultation with its outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duty of the Board of Directors of the Company under applicable law, (C) the Company is not in breach of this Section 5.1 and (D) in the case of clause (ii) above, (I) the Company shall, prior to or simultaneously with the taking of such action, have paid or pay to Newco or its designee the Termination Fee and Expense Reimbursement referred to in Section 7.3, and (II) the Company shall have complied with its obligations under Section 7.1(h).
(c) In addition to the obligations of the Company set forth in Sections (a) and (b) above, the Company shall promptly (and in any event, within 24 hours) advise Newco orally and in writing of any request for information or the submission or receipt of any Acquisition Proposal, or any inquiry with respect to or which could lead to any Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the person making any such request, Acquisition Proposal or inquiry and its response or responses thereto. The Company will keep Newco fully informed of the status and material terms (including amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations existing on the date of this Agreement with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding , provided that this sentence will not make the foregoingprovisions of Sections 5.1(a) or (b) inapplicable to a subsequent proposal by any such party.
(d) As used herein, "Acquisition Proposal" means an -------------------- inquiry, offer or proposal regarding any of the Company may furnish information concerning its businessfollowing (other than the Transactions contemplated by this Agreement) involving the Company: (i) any merger, properties or assets to any corporationconsolidation, partnershipshare exchange, person recapitalization, liquidation, dissolution, business combination or other entity similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity other disposition of 15% or group concerning an Acquisition Proposal (x) if such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Board more of Directors of the Company relating to any such transaction which the Board of Directors determines (based upon the advice of independent investment bankers for the Company) represents a superior transaction to the Merger for the shareholders of the Company, and (y) if the Board of Directors of the Company determines, only after receipt of advice from independent legal counsel to the Company and firm, that the 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 shareholders under applicable law. The Company shall immediately (in any event within 24 hours) communicate to Mergerco the terms of any proposal, discussion, negotiation or inquiry (and will disclose any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction.the
Appears in 1 contract