No Solicitation. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if: (x) such Person or group has submitted a Superior Proposal;
Appears in 3 contracts
Sources: Merger Agreement (Borland Software Corp), Merger Agreement (Starbase Corp), Merger Agreement (Borland Software Corp)
No Solicitation. (a) The Company shall notMedicus and its subsidiaries and the officers, nor shall it permit any of its Subsidiaries todirectors, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney employees or other advisor or representative (collectively, “Representatives”) agents of the Company or any of Medicus and its Subsidiaries to, (i) solicit or initiate, or encouragesubsidiaries will not, directly or indirectly, (i) take any inquiries action to solicit, initiate or encourage any Takeover Proposal (defined below) or (ii) subject to the terms of the immediately following sentence, engage in negotiations with, or disclose any nonpublic information relating to Medicus or any of it subsidiaries to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide afford access to the properties properties, books or records of the Company Medicus or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead subsidiaries to, any Acquisition Proposal person that has advised Medicus that it may be considering making, or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition that has made, a Takeover Proposal; provided, however, that nothing contained in this Section 5.3 or any other provision hereof herein shall prohibit the Company or the Company’s board Medicus' Board of directors Directors from (x) taking and disclosing to the Company’s Medicus' stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, if an unsolicited Takeover Proposal, or (y) making such disclosure an unsolicited written expression of interest that can reasonably be expected to lead to a Takeover Proposal, shall be received by the Board of Directors of Medicus, then, to the Company’s stockholders as, extent the Board of Directors of Medicus believes in the good faith judgment (after consultation with its financial advisor) that such Takeover Proposal would, if consummated, result in a transaction more favorable to Medicus' stockholders from a financial point of view than the Company’s board transaction contemplated by the Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of directors, pursuant Directors of Medicus determines in good faith after consultation with outside legal counsel that it is necessary for the Board of Directors of Medicus to advice from independent legal counsel, is reasonably expected comply with its fiduciary duties to be required stockholders under applicable law, provided that Company Medicus and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may notfurnish in connection therewith information and take such other actions as are consistent with the fiduciary obligations of Medicus' Board of Directors, except as permitted by and such actions shall not be considered a breach of this Section 5.3(b), withdraw 4.3 or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution other provisions of this Agreement, provided that in each such event Medicus notifies QuadraMed of such determination by the Company will immediately cease any existing activities, discussions or negotiations Medicus Board of Directors and provides QuadraMed with any Person conducted heretofore with respect to any a true and complete copy of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below)received from such third party, provided if the Superior Proposal is in writing, or a complete written summary thereof, if it is not in writing, and provides QuadraMed with all documents containing or referring to non-public information of Medicus that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable are supplied to such third party than those party; provided for in further, that (A) the Confidentiality Agreement (provided that such confidentiality agreement must permit Board of Directors of Medicus has determined, with the Company to disclose to Parent all advice of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Medicus' investment bankers, that
Appears in 3 contracts
Sources: Merger Agreement (Quadramed Corp), Agreement and Plan of Reorganization (Quadramed Corp), Merger Agreement (Quadramed Corp)
No Solicitation. (a) The During the Pre-Closing Period, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating toand the Company shall: (x) ensure that its Subsidiaries do not, directly or indirectly; and (y) use its commercially reasonable efforts to ensure that the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties respective Representatives of the Company Acquired Corporations do not, directly or any of its Subsidiariesindirectly:
(i) solicit, initiate, knowingly encourage, induce or take any other action to knowingly facilitate the making making, submission or announcement of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or Acquisition Inquiry;
(ii) furnish any nonpublic information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry;
(iii) enter into engage in discussions or negotiations with any agreement Person with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; providedInquiry;
(iv) approve, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve endorse or recommend any Acquisition ProposalProposal or Acquisition Inquiry; or
(v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the Company Stockholders' Meeting, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal made by such Person (and not withdrawn) that constitutes, or could reasonably be expected to result in the submission by such Person to the Company of, a Superior Offer if: (A) neither the Company nor any Representative of any of the Acquired Corporations shall have breached any of the provisions set forth in this Section 4.3; (B) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that such action is required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company's stockholders under applicable law; (C) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into any discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement with respect containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and "standstill" provisions) at least as favorable to any Acquisition Proposal. Upon the Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement; and (D) at least two business days prior to furnishing any such nonpublic information to such Person, the Company will furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing (and notwithstanding the reference to "commercially reasonable efforts" in the language immediately cease preceding clause "(i)" of this Section 4.3(a)), the Company acknowledges and agrees that any existing activities, discussions or negotiations with any Person conducted heretofore with respect to breach of any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined provisions set forth in the Exchange Act and preceding sentence by any affiliate, director, officer, agent or attorney of any of the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group Acquired Corporations, whether or not such affiliate, director, officer, agent or attorney is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. For purposes of this Agreement, an affiliate, director, officer, agent or attorney of an Acquired Corporation, or any other Person, shall be deemed to have breached a provision of this Section 4.3 if such affiliate, director, officer, agent or attorney or other Person or group has had previous discussions or negotiations with takes any action that would constitute a breach by the Company concerning a Superior Proposal (as defined below), provided that of such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit provision were the Company to disclose to take such action directly.
(b) The Company shall promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal or Acquisition Inquiry) advise Parent all orally and in writing of any Acquisition Proposal or Acquisition Inquiry (including the identity of the information required Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any modification or proposed modification thereto.
(c) The Company shall immediately cease and cause to be disclosed by the Company terminated any existing discussions with any Person that relate to Parent by this Section 5.3) if:any Acquisition Proposal or Acquisition Inquiry.
(xd) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, "standstill" or similar Contract to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and will use its commercially reasonable efforts to cause each such agreement to be enforced at the request of Parent. The Company also shall promptly request each Person that has executed a confidentiality or similar agreement within the last 12 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in any Acquired Corporation to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or group has submitted a Superior Proposal;on behalf of any of the Acquired Corporations.
Appears in 3 contracts
Sources: Merger Agreement (Macromedia Inc), Merger Agreement (Adobe Systems Inc), Merger Agreement (Adobe Systems Inc)
No Solicitation. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, through any inquiries relating toofficer, director, employee, representative or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties agent of the Company or any of its Subsidiaries, (i) solicit, initiate or encourage or take any other action to knowingly facilitate the making institution of any proposal that constitutesinquiries or proposals regarding any merger, reorganization, consolidation, business combination, recapitalization, liquidation, dissolution, sale of all or any significant portion of assets, sale of shares of capital stock (including without limitation by way of a tender or exchange offer) or similar transactions involving the Company or any Subsidiaries of the Company other than the Merger (any of the foregoing inquiries or proposals being referred to herein as an "ACQUISITION PROPOSAL"), (ii) engage in negotiations or discussions concerning, or may reasonably be expected provide any nonpublic information or assistance to lead to, any person in connection with any Acquisition Proposal Proposal, or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; providedagree to, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal. Nothing contained in this SECTION 6.03(a) shall prevent the Board of Directors of the Company from considering, negotiating, discussing, approving and recommending to the stockholders of the Company a bona fide Acquisition Proposal not solicited in violation of this Agreement, PROVIDED that the Board of Directors of the Company determines in good faith (after consultation with and based upon the advice of outside counsel) that it is required to do so in order to discharge properly its fiduciary duties to the Company's stockholders; and PROVIDED, FURTHER, that the Company shall keep Parent informed, on a reasonably current basis, as to the status and details of any such consideration, negotiations or enter into discussions. Nothing contained in this SECTION 6.03 shall prohibit the Board of Directors of the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer.
(b) The Company shall immediately notify Parent after receipt of any agreement with respect Acquisition Proposal or any modification of or amendment to any Acquisition Proposal. Upon execution of this Agreement, or any request for nonpublic information relating to the Company will or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any person or entity that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing, shall indicate whether the Company is providing or intends to provide the person making the Acquisition Proposal with access to information concerning the Company as provided in SECTION 6.03(c) and, if reasonably practicable, shall be made prior to furnishing any such information to, or entering into negotiations or discussions with, such person.
(c) If the Board of Directors of the Company receives a request for material nonpublic information by a person who makes, or indicates that it is considering making, a bona fide Acquisition Proposal, and the Board of Directors determines in good faith and upon the advice of outside counsel that it is required to cause the Company to act as provided in this SECTION 6.03(c) in order to discharge properly the directors' fiduciary duties to the Company's stockholders, then, PROVIDED that such person has executed a confidentiality agreement substantially similar to the one then in effect among the Company and Parent the Company may provide such person with access to information regarding the Company.
(d) The Company shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person persons (other than Parent) conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior The Company agrees not to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to release any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, third party from the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such any confidentiality agreement must permit to which the Company to disclose to Parent all is a party.
(e) The Company shall ensure that the officers, directors and employees of the information required to be disclosed Company and its Subsidiaries and any investment banker or other advisor or representative retained by the Company to Parent by are aware of the restrictions described in this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;SECTION 6.03.
Appears in 3 contracts
Sources: Merger Agreement (Premiere Technologies Inc), Merger Agreement (Xpedite Systems Inc), Merger Agreement (Premiere Technologies Inc)
No Solicitation. (a) The Company During the term of this Agreement, the Stockholders shall not, nor shall it they permit any of its their Subsidiaries or any officer or employee of any Stockholder or any of their Subsidiaries to, nor shall it they authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment bankerRepresentative (as defined in the Merger Agreement) of, attorney any Stockholder or other advisor any of their Subsidiaries to, and shall instruct each of them not to, except, if any of them is a director of the Company or representative any Stockholder, as the case may be, as required in order to comply with such individual’s fiduciary duties as a director of the Company or any Stockholder, as the case may be, as specifically permitted by Section 3.06, directly or indirectly: (collectivelyi) solicit, “Representatives”initiate or knowingly induce or encourage the submission of, any Company Takeover Proposal (as hereinafter defined); (ii) enter into any letter of intent or agreement in principle or any agreement providing for, relating to or in connection with, any Company Takeover Proposal or any proposal that could reasonably be expected to lead to a Company Acquisition Transaction (as hereinafter defined); (iii) approve, endorse or recommend any Company Takeover Proposal; (iv) enter into, continue or otherwise participate in any discussions or negotiations with any Person with respect to any Company Takeover Proposal; or (v) furnish any non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company to, any Person in connection with or in response to any Company Takeover Proposal; provided, however, that nothing contained in this Agreement shall prohibit any Stockholder or its board of directors, directly or indirectly through any of its officers, directors, employees or Representatives, prior to obtaining the Manchester Shareholder Approval, from taking any of the actions described in clauses (iv) and (v) above in response to any unsolicited bona fide Company Takeover Proposal that the board of directors of Manchester concludes in good faith, after consultation with its outside financial advisors, constitutes or is reasonably expected to result in, a Superior Proposal (as hereinafter defined) if (and only if) (1) the board of directors of Manchester concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Takeover Proposal would be inconsistent with the exercise by the board of directors of its fiduciary duties to Manchester (including to the shareholders of Manchester) under applicable Law and (2) prior to furnishing any non-public information to, or entering into discussions or negotiations with, the Person making such Company Takeover Proposal (the “Third Party”), (x) the Stockholders receive from such Third Party an executed confidentiality agreement with provisions not less favorable to the Stockholders or the Company than those contained in the Confidentiality Agreement (as defined in the Merger Agreement) and (y) the Stockholders provide to Emerald and the Company in accordance with Section 3.04(b) the information required under Section 3.04(b) to be delivered by the Stockholders to Emerald. The Stockholders agree that they and their Subsidiaries shall not enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that prohibits the Stockholders from providing information to the Company and Emerald that is required to be provided to the Company or Emerald under this Section 3.04.
(b) The Stockholders shall promptly, and in any event no later than twenty-four (24) hours after they receive any Company Takeover Proposal, or any written request for non-public information regarding the Company or any of its Subsidiaries in connection with a Company Takeover Proposal, advise the Company and Emerald orally and in writing of such Company Takeover Proposal or request, including providing the identity of the Person making or submitting such Company Takeover Proposal or request, and, (i) solicit or initiateif it is in writing, or encourage, directly or indirectly, a copy of such Company Takeover Proposal and any inquiries relating to, or the submission of, related draft agreements and any Acquisition Proposal, other written material and (ii) participate if oral, a reasonably detailed summary thereof that is made or submitted by such Person. The Stockholders shall keep Emerald and the Company informed in all material respects on a prompt basis of the status and details of any discussions such Company Takeover Proposal or negotiations regarding with respect to any Acquisition change to the material terms of any such Company Takeover Proposal. The Stockholders agree that, or subject to restrictions under Laws applicable to the Stockholders and their Subsidiaries, they shall promptly provide to Emerald any non-public information concerning the Company and its Subsidiaries that the Stockholders provide to any Third Party in connection with any Acquisition ProposalCompany Takeover Proposal which was not previously provided to Emerald.
(c) Immediately following the execution of this Agreement, the Stockholders shall, and shall cause their Subsidiaries and their and their Subsidiaries’ respective officers, directors and employees, and shall cause their and their Subsidiaries’ respective Representatives to, immediately cease and terminate any activities, discussions or furnish to negotiations existing as of the date of this Agreement between the Stockholders or any Person of their Subsidiaries or any information of their respective officers, directors, employees or data Representatives, on the one hand, and any other Person, on the other hand, with respect to any Company Takeover Proposal.
(d) For purposes of this Agreement, (x) a “Company Takeover Proposal” means any inquiry, offer or provide access proposal by any Person (other than Emerald) relating to any Company Acquisition Transaction, (y) a “Company Acquisition Transaction” means any transaction or series of related transactions other than the properties Merger or as contemplated by the Framework Agreement involving: (i) any acquisition or purchase from the Stockholders, the Company or both the Stockholders and the Company by any Person of 20% or more of the total outstanding voting securities of the Company or any of its Subsidiaries; (ii) any tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the total outstanding voting securities of the Company or any of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization or similar transaction involving the Company pursuant to which the stockholders of the Company immediately preceding such transaction hold less than 80% of the equity interests in the surviving or resulting entity of such transaction; (iv) any direct or indirect acquisition of any business or businesses or of assets (including equity interests in any Subsidiary) that constitute or account for 20% or more of the consolidated net revenues, net income or assets (based on the fair market value thereof) of the Company and its Subsidiaries, taken as a whole; or (v) any liquidation or dissolution of the Company or any of its Subsidiaries, or take any other action and (z) a “Superior Proposal” means an unsolicited, bona fide written Company Takeover Proposal to knowingly facilitate acquire at least (a) 50% of the making outstanding voting securities of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or (b) 50% of the Company’s board assets of directors from (x) taking the Company and disclosing to the Company’s stockholders its Subsidiaries, taken as a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actwhole, or (y) making such disclosure to the Company’s stockholders asin each case on terms that, in the reasonable good faith judgment of the Company’s board of directorsdirectors of Manchester, pursuant to advice from independent after consultation with its outside financial advisors and its outside legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party the shareholders of Manchester than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit Coniston Transaction and the Company other transactions contemplated by the Framework Agreement, taking into account any proposal by Emerald or the Company, as applicable, to disclose to Parent all amend or modify the terms of the information required Merger Agreement or the Framework Agreement that are committed to be disclosed in writing, after taking into account such factors, including terms, conditions, timing, likelihood of consummation, legal, financial, regulatory and other aspects of such proposal, and the Person making such proposal, in each case as deemed relevant by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;board of directors of Manchester.
Appears in 3 contracts
Sources: Voting Agreement (Misys PLC), Voting Agreement (Allscripts-Misys Healthcare Solutions, Inc.), Voting Agreement (Eclipsys Corp)
No Solicitation. (a) The Company shall notNeither of the Companies shall, nor shall it permit directly or indirectly, through any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director director, employee, stockholder, financial advisor, agent or employee of, or other representative (including any investment banker, attorney or other advisor accountant retained by the Companies or representative (collectively, “Representatives”) of the Company or by any of its Subsidiaries to, their subsidiaries or stockholders) (i) solicit or solicit, initiate, encourage or encourage, directly or indirectly, facilitate (including by way of furnishing information) any inquiries relating toor proposals that constitute, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may would reasonably be expected to lead to, (x) a breach of this Agreement or the Voting Agreement or otherwise interfere in any material respect with the completion of the Mergers or (y) a proposal or offer for an Alternative Transaction (as defined below) involving either of the Companies or any of their subsidiaries (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) participate or engage in negotiations or discussions concerning, or provide any non-public information to any person relating to, or otherwise facilitate any effort or attempt to make or implement, any Acquisition Proposal Proposal, or (iii) enter into any agreement with respect agree to any Acquisition Proposal or approve or resolve recommend to approve its stockholders any Acquisition Proposal; provided, however, that nothing contained in this Section 5.3 or any other provision hereof Agreement shall prohibit prevent either Company from complying with Rule 14e-2 under the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position Exchange Act 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 (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any an Acquisition Proposal. Upon execution of this Agreement, the Company The Companies agrees that they will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person persons (other than Parent and GC Merger Sub) conducted heretofore with respect to any Acquisition Proposal. The Companies agrees not to release any other person from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another person who has made or who may reasonably be considered likely to make an Acquisition Proposal. The Companies agrees that they will take the necessary steps to inform promptly the individuals or entities referred to in the first sentence of this Section 5.12 of the obligations undertaken in this Section 5.12.
(b) The Companies shall notify Parent immediately after receipt by either Company (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the properties, books or records of either Company by any person or entity that informs such party that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the person making such Acquisition Proposal and the terms and conditions of such proposal, inquiry or contact.
(c) As used in this Agreement, "Alternative Transaction" means (i) a transaction pursuant to which any person or group other than Parent or its affiliates (a "Third Party") would acquire, directly or indirectly, more than 25% of the outstanding shares of IPC Common Stock or IXnet Common Stock whether pursuant to a tender offer or exchange offer or otherwise, (ii) a merger or other business combination involving either Company pursuant to which any person or group would acquire, directly or indirectly, more than 25% of the outstanding shares of IPC Common Stock or IXnet Common Stock or shares exercisable or convertible into or exchangeable for more than 25% of the outstanding shares of IPC Common Stock or IXnet Common Stock, or of the entity surviving such merger or business combination, (iii) any other transaction pursuant to which any person or group acquires control of assets or businesses (including for this purpose the outstanding equity securities of subsidiaries of IPC, and the entity surviving any merger or business combination including any of them) of IPC or IXnet having a fair market value equal to more than 25% of the fair market value of all the assets or businesses of either Company and its subsidiaries, taken as a whole, immediately prior to such transaction, (iv) any recapitalization, restructuring or other transaction which would reasonably be expected to prevent or materially impair or delay the consummation of the Mergers or (v) 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, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Cable Systems Holding LLC), Merger Agreement (Global Crossing LTD), Merger Agreement (Global Crossing Holdings LTD)
No Solicitation. (a) The Company shall not, nor shall it permit directly or indirectly, through any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director director, employee, representative or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) agent of the Company or any of its Subsidiaries tosubsidiaries, (i) solicit or initiate, or encourage, directly or indirectly, encourage (including by way of furnishing information) the initiation of any inquiries relating toor proposals regarding an Alternative Transaction (as defined below) (any of the foregoing inquiries or proposals being referred to herein as an "Acquisition Proposal"). Provided that -------------------- the Company and the Board shall have complied with the first sentence of this Section 6.4(a), nothing contained in this Section 6.4(a) or any other provision of this Agreement shall prevent the submission ofBoard if it determines in good faith, after consultation with, and the receipt of advice from, outside counsel, that it is required to do so in order to discharge properly its fiduciary duties, from considering, negotiating, approving and recommending to the stockholders of the Company an unsolicited bona fide written Acquisition Proposal (provided that -------- such Acquisition Proposal is for not less than $23.00 per Share and has no financing contingencies) which the Board of Directors of the Company determines in good faith (after consultation with its financial advisors) would result in a transaction more favorable to the Company's stockholders than the transaction contemplated by this Agreement (any Acquisition Proposal meeting such criteria, including those specified in the immediately preceding parenthetical proviso, being referred to herein as a "Superior Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection "). Nothing herein shall ----------------- prohibit the Company from complying with any Acquisition Proposal, or furnish to any Person any information or data Rules 14d-9 and 14e-2 under the Exchange Act with respect to any other tender offers.
(b) The Company shall promptly, but in no event later than 24 hours, notify Parent after receipt of any Acquisition Proposal or provide access any request for nonpublic information relating to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any subsidiaries in connection with an Acquisition Proposal or (iii) enter into any agreement with respect for access to any Acquisition Proposal the properties, books or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit records of the Company or any subsidiary by any person or entity that informs the Company’s board Board 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 in reasonable detail the identity of directors from the offeror and the terms and conditions of such proposal, inquiry or contact.
(xc) taking and disclosing to If the Company’s stockholders Board receives a position with respect to a tender or exchange offer request for material nonpublic information by a third party who makes an unsolicited bona fide Acquisition Proposal and the Board determines that such proposal, if consummated pursuant to Rules 14d-9 its terms would be a Superior Proposal, then, and 14e-2 promulgated under the Exchange Act, or (y) making only in such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modifycase, the Company Board Recommendation or approve or recommendmay, or propose subject to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon the execution of this Agreement, a confidentiality agreement substantially similar to that then in effect between the Company will and Parent, provide such party with access to information regarding the Company.
(d) The Company shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person parties (other than Parent and Merger Sub) conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior The Company agrees not to the time of acceptance of Company Common Stock for payment pursuant release any third party from any confidentiality or standstill agreement to the Offer, which the Company may furnish information concerning its businesses or its Subsidiariesis a party.
(e) The Company shall ensure that the officers, properties or assets to any Person or “group” (as defined in the Exchange Act directors and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with employees of the Company concerning a Superior Proposal (as defined below), provided that such Person and its subsidiaries and any investment banker or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed other advisor or representative retained by the Company to Parent by are aware of the restrictions described in this Section; and shall be responsible for any breach of this Section 5.3) if:
(x) 6.4 by such Person or group has submitted a Superior Proposal;bankers, advisors and representatives.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Sun Healthcare Group Inc), Merger Agreement (Sun Healthcare Group Inc), Merger Agreement (Regency Health Services Inc)
No Solicitation. (a) The From the date hereof until the termination hereof, the Company shall will not, nor shall it permit any and will cause its subsidiaries and the officers, directors, employees and other agents and advisors of the Company and its Subsidiaries subsidiaries not to, nor shall it authorize directly or indirectly, (and shall use its best efforts not i) take any action to permitsolicit, initiate or encourage the submission of any Acquisition Proposal or (ii) disclose any affiliatenonpublic information relating to, officeror afford access to the properties, director books or employee records of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating subsidiaries to, or the submission of, any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding with, any person who is considering making or has made an Acquisition Proposal; provided that the Company may furnish nonpublic information or afford access to properties, books and records to any person who is considering making or has made an Acquisition Proposal and may negotiate or otherwise engage in substantive discussions with any person who has made an Acquisition Proposal if (w) the Company has complied with the foregoing terms of this Section 6.03, (x) the Independent Committee determines in good faith (after consultation with independent legal counsel) that failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable law, (y) such person executes a confidentiality agreement on terms no less favorable to the Company than those contained in Section 8.07 and (z) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(b) The Company will notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or any of its advisors) of any Acquisition ProposalProposal or any request for nonpublic information relating to, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of properties, books or records of, the Company or any of its Subsidiariessubsidiaries by any person who is considering making or has made an Acquisition Proposal. The Company shall identify the person making, or take any other action to knowingly facilitate and the making of any proposal that constitutes, or may reasonably be expected to lead toterms and conditions of, any such Acquisition Proposal or (iii) enter into request. The Company shall keep Parent fully informed, on a current basis, of the status and details of any agreement with respect to any such Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; providedrequest. The Company shall, that nothing contained in this Section 5.3 or any and shall cause its subsidiaries and the officers, directors, employees and other provision hereof shall prohibit agents and advisors of the Company and its subsidiaries to, cease immediately and cause to be terminated all activities, discussions or the Company’s board of directors from (x) taking and disclosing negotiations, if any, with any persons conducted prior to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement date hereof with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 3 contracts
Sources: Offer to Purchase (McDermott Acquisition Co Inc), Agreement and Plan of Merger (McDermott J Ray Sa), Merger Agreement (McDermott International Inc)
No Solicitation. (a) The Company shall not, nor and shall it not permit any of its Subsidiaries and their respective officers, directors, employees, representatives (including its investment bankers or attorneys), agents or affiliates to, nor shall it authorize (and shall use its best efforts not to permit) directly or indirectly, encourage, solicit, initiate or participate in any affiliate, officer, director way in any discussions or employee ofnegotiations with, or provide any investment bankernon-public information to, attorney or other advisor afford any access to the properties, books or representative (collectively, “Representatives”) records of the Company or any of its Subsidiaries to, (i) solicit or initiate, otherwise assist or encourage, directly or indirectlyfacilitate, any inquiries relating tocorporation, partnership, person or the submission of, other entity or group (other than Parent or Sub or any affiliate or associate of Parent or Sub) concerning any Acquisition ProposalTransaction (as defined in Section 6.11 herein) or potential Acquisition Transaction; PROVIDED, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; providedHOWEVER, that nothing contained in this Section 5.3 Agreement shall prohibit the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations with any other provision hereof person or entity that makes an unsolicited bona fide proposal to engage in an Acquisition Transaction that the Board of Directors of the Company determines in good faith represents a financially superior transaction for the stockholders of the Company when compared to the Offer and the Merger if, and only to the extent that, the Board of Directors determines in good faith, following the receipt of advice of outside legal counsel, that failure to take any such action is reasonably likely to be a breach by the Board of Directors of its fiduciary duties to the stockholders of the Company under applicable law; and PROVIDED FURTHER, HOWEVER, that nothing contained in this Agreement shall prohibit the Company or the Company’s board its Board of directors Directors from (x) taking and disclosing to the Company’s 's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 14e-2(a) promulgated under the Exchange Act, . The Company will promptly notify Parent and Sub if any such information is requested from it or (y) any such negotiations or discussions are sought to be initiated with the Company and will promptly communicate to Parent and Sub the terms of any proposal or inquiry and the identity of the party making such disclosure to the Company’s stockholders asproposal or inquiry which it may receive in respect of any such transaction, including, in the good faith judgment case of written proposals or inquiries, furnishing Parent and Sub with a copy of such written proposal or inquiry (and all amendments and supplements thereto). Subject to the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution first sentence of this AgreementSection 6.02, the Company will and will cause its Subsidiaries, affiliates and their respective officers, directors, employees, representatives and agents to immediately cease and cause to be terminated any existing activities, discussions discussions, or negotiations with any Person parties other than Parent, Sub or any of their respective affiliates or associates conducted heretofore with respect to any Acquisition Transaction. Except as is required in the exercise of the foregoing. Notwithstanding fiduciary duties of the foregoingBoard of Directors of the Company as determined in good faith, prior to following the time receipt of acceptance advice of Company Common Stock for payment pursuant to the Offeroutside legal counsel, the Company may furnish information concerning its businesses agrees not to release any third party from any confidentiality or its Subsidiaries, properties or assets standstill agreement to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with which the Company concerning is a Superior Proposal (as defined below), provided that party without Parent's prior written consent and to take all steps deemed necessary or appropriate by Parent to enforce to the fullest extent possible all such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;agreements.
Appears in 3 contracts
Sources: Merger Agreement (Henkel Acquisition Corp Ii), Merger Agreement (Dep Corp), Merger Agreement (Dep Corp)
No Solicitation. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it or authorize (and shall use its best efforts not to permit) or permit any affiliatedirector, officer, director officer or employee of, of the Company or any of its Subsidiaries or any investment banker, attorney attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate, negotiate or encourage, or the submission oftake any other action knowingly to facilitate, any Acquisition Proposal, Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to or provide access to obtaining approval of the properties Company's shareholders as contemplated by Section 6.02 hereof, the Board of Directors of the Company or any of its Subsidiariesmay, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect response to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making bona fide written Takeover Proposal that such disclosure to the Company’s stockholders as, Board of Directors reasonably determines in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected likely to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board result in an Adverse Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” Change (as defined in the Exchange Act and the rules promulgated thereunderbelow) and may negotiate and participate in discussions and negotiations or, after consultation with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning its independent financial advisors, constitutes a Superior Proposal (as defined below), provided that and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 6.04, (x) furnish information with respect to the Company and its Subsidiaries to the person making such Person or group shall have entered into Takeover Proposal (and its representatives) pursuant to a confidentiality agreement, the confidentiality provisions of which shall be no agreement with terms not more favorable to such third party person than those provided for in the Confidentiality Agreement (Agreement, provided that all such confidentiality agreement must permit information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal, provided that the Company to disclose shall have delivered to Parent prior written notice advising Parent that it intends to participate in such discussions or negotiations. The Company will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of the all confidential information required to be disclosed by regarding the Company and ELF provided to Parent by this Section 5.3) if:
(x) any such Person parties prior to the date hereof pursuant to the terms of any confidentiality agreements or group has submitted a Superior Proposal;otherwise.
Appears in 3 contracts
Sources: Merger Agreement (Kellogg Co), Agreement and Plan of Restructuring and Merger (Keebler Foods Co), Agreement and Plan of Restructuring and Merger (Flowers Industries Inc /Ga)
No Solicitation. (a) The From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or employee Representative of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries Company Subsidiary to, (i) solicit or initiate, or encourageand the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, any inquiries relating to(i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of, of any Acquisition Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve Person that has disclosed to approve any Acquisition the Company that it is contemplating making a Company Takeover Proposal; provided, that nothing contained however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.3 or any other provision hereof shall prohibit 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or the Company’s board of directors from may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) taking furnish information with respect to the Company to the person making such Company Takeover Proposal and disclosing its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders stockholders, a position with respect to a any tender offer or exchange offer by a third party pursuant to Rules or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act, or Act (y) making such disclosure to provided that the Company Board shall not recommend that the Company’s stockholders as, tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
(b) If, prior to the consummation of the Merger:
(i) (A) the Company Board has received a Superior Company Proposal or (B) the Company Board shall have determined in good faith judgment faith, after consultation with its outside legal counsel and financial advisors, that the failure to withdraw or modify the Company Recommendation may be reasonably expected to violate the fiduciary duties of the Company Board under applicable Law,
(ii) the Company has notified Parent in writing of the determination described in clause (i) above,
(iii) at least four (4) business days following receipt by Parent of the notice received in clause (ii) above, and taking into account any revised proposal made by Parent since receipt of the notice referred to in clause (ii) above, the Company Board determines that such Superior Company Proposal remains a Superior Company Proposal, and
(iv) the Company is in compliance with this Section 5.02, then the Company Board may withdraw or modify the Company Recommendation (as defined in Section 6.01(f)).
(c) The Company promptly, but in any event within five (5) business days after receipt thereof, shall advise Parent in writing of any Company Takeover Proposal, including the material terms and conditions thereof, or any inquiry with respect to or that would reasonably be expected to lead to any Company Takeover Proposal. The Company shall promptly, but in any event no later than two (2) business days before providing information or entering into discussions with such third party, provide written notice to Parent of the Company’s board of directors, pursuant intent to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, furnish information or enter into discussions with such third party. The Company shall promptly provide Parent a copy of the Company’s response to a Company Takeover Proposal and copies of any agreement with respect amendments or modifications to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Takeover Proposal;.
Appears in 3 contracts
Sources: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Jorgensen Earle M Co /De/)
No Solicitation. (a) The Company shall and its Subsidiaries will not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall the Company will direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, take any inquiries relating toaction to solicit, initiate, or the submission of, any Acquisition Proposal, (ii) participate in any discussions knowingly encourage or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutesAcquisition Proposal (including, without limitation, by granting any waiver under Section 203 of the DGCL) or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto (except to notify such Person of the existence of the provisions of this Section 7.8), or may reasonably be expected disclose any nonpublic information or afford access to lead toproperties, books or records to any Person that has made, or to the Company’s knowledge is considering making, any Acquisition Proposal, or approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, option agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal, or propose publicly or agree to do any of the foregoing relating to an Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from (i) complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (yii) making such any disclosure to if, in the Company’s stockholders ascase of this clause (ii), in the good faith judgment of the Company’s board Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided that any such disclosure that relates to an Acquisition Proposal shall be deemed to be a Change in the Company Recommendation unless the Company’s Board of Directors reaffirms in such disclosure the Company Recommendation. The Company shall be permitted to make any “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) under the Exchange Act or complying with disclosure obligations under Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Acquisition Proposal shall not be a Change in the Company Recommendation so long as any action taken or statement made is consistent with this Section 7.8 (including the immediately foregoing sentence) and provided that any such disclosure permitted by this sentence shall not permit the Company Board of Directors to make a Change in the Company Recommendation except pursuant to Section 5.3. Notwithstanding anything to the contrary in this Agreement but subject to the first sentence of Section 7.8(b), prior to (but not after) the date of the Company Stockholder Approval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information and access, but only in response to a request for information or access, to any Person, and its representatives (including sources of financing), making a bona fide, written Acquisition Proposal to the Board of Directors of the Company after the date of this Agreement which was not obtained as a result of a breach of Section 5.2(a), Section 5.2(b) or this Section 7.8 and (B) participate in discussions and negotiate with such Person or its representatives concerning any such unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A) or (B) of this sentence, (1) the Board of Directors of the Company concludes in good faith, (x) after receipt of the advice from independent of a financial advisor of nationally recognized reputation and outside legal counsel, is that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal and (y) that failure to do so would be required reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable lawlaw and (2) the Company receives from the Person making such an Acquisition Proposal, prior to engaging in any of the activities described in clause (A) or (B) of this sentence, an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (i) no less favorable to the Company and (ii) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement. The Company agrees that any material non-public information provided to such Person that has not previously been provided to Parent shall be provided to Parent prior to or substantially concurrently with the time it is provided to such Person. The Board of Directors of the Company shall not take any of the actions referred to in the foregoing clauses (A) and (B) unless the Company shall have first delivered to Parent written notice advising Parent that the Company intends to take such action; provided that Company may not, except as permitted by Section 5.3(b), withdraw only one such notice need be given with respect to any specific Acquisition Proposal or modify, amended or propose to withdraw modified Acquisition Proposal.
(b) In the event that on or modify, after the date of this Agreement the Company Board Recommendation or approve or recommend, or propose to approve or recommend any receives an Acquisition Proposal, or enter into any agreement request for nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or has informed the Company it is considering making, an Acquisition Proposal, the Company will (A) promptly (and in no event later than twenty-four (24) hours after a director or senior executive officer of the Company becomes aware of such an Acquisition Proposal or request) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal or request and set forth the material terms thereof) Parent thereof, (B) keep Parent reasonably and promptly informed of the status and material terms of (including with respect to changes to the status or material terms of) any such Acquisition Proposal or request, and (C) as promptly as practicable (but in no event later than twenty-four (24) hours after a director or senior executive officer of the Company becomes aware of receipt) provide to Parent unredacted copies of all material correspondence and material written materials (whether or not electronic) sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions thereof, including any proposed transaction agreements (along with all schedules and exhibits thereto and any financing commitments related thereto), as well as written summaries of any material oral communications relating to the terms and conditions thereof. The Company (x) shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date of this Agreement with any Persons with respect to any Acquisition Proposal. Upon execution of this AgreementProposal or the possibility thereof, (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, nine (9) months prior to the time date of acceptance this Agreement in connection with its consideration of any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (z) immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company Common Stock for payment pursuant or any of its Subsidiaries. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any such Acquisition Proposal and shall enforce the provisions of any such agreement; provided that the Company shall be permitted on a confidential basis, upon written request by a relevant party thereto and without prior notice to Parent disclosing the party and the circumstances, to release or waive any standstill obligations solely to the Offer, extent necessary to permit the party referred therein to submit an Acquisition Proposal to the Board of Directors of the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the on a confidential basis. The Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose provide written notice to Parent all of the information required to be disclosed any waiver or release of any standstill by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Company.
Appears in 3 contracts
Sources: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
No Solicitation. (a) The Company From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 8, the Company, its Subsidiaries and their affiliates shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of cause the Company or any of its Subsidiaries Representatives not to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any Acquisition Proposal, knowingly encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any including by way of furnishing information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesassistance), or take any other action to knowingly facilitate facilitate, any inquiry in connection with or the making of any proposal from any Person that constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal (as defined in Section 6.08(f)), (ii) enter into, explore, maintain, participate in or continue any discussion or negotiation with any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) regarding an Acquisition Proposal, or furnish to any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) any non-public information or otherwise assist or participate in, facilitate or encourage, any known effort or attempt by any other Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) to make or effect an Acquisition Proposal, (iii) enter into any agreement agreement, arrangement or understanding with respect to any Acquisition Proposal to, or approve or resolve to approve 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 Section 5.3 or any other provision hereof 6.08 shall prohibit the Company Board, based upon the recommendation of the Special Committee, prior to approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, from 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 6.08) if (A) the Company Board, based upon the recommendation of the Special Committee, determines in good faith after consultation with its financial advisors and outside legal advisors, that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's shareholders under applicable law, (B) the Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal (as defined in Section 6.08(g)) and (C) prior to furnishing such information to, or engaging in discussions or negotiations regarding an Acquisition Proposal or the Transactions 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 Confidentiality Agreement.
(b) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 8, if the Company Board is entitled to furnish information to, or engage in discussions or negotiations with, any Person on the terms contemplated in Section 6.08(a), the Company Board may, prior to the approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, terminate this Agreement in respect of any Acquisition Proposal pursuant to the termination provisions set forth in Article 8 hereof if (A) such Acquisition Proposal constitutes a Superior Proposal and (B) the Company Board, based upon the recommendation of the Special Committee, shall have determined in good faith after consultation with financial advisors and outside legal advisors, that such action is necessary for the Company Board to comply with its fiduciary duties to the Company’s board 's shareholders under applicable Law.
(c) The Company (i) will promptly (but in any event within one Business Day) notify Parent orally and in writing of directors the receipt of any Acquisition Proposal or any inquiry by which a third party expresses an interest or intention to make 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 fully 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 6.08(a), the Company Board shall promptly (but in any event within 48 hours prior to taking any such action) 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 four Business Days (the "Four Day Period") prior to taking any of the actions referred to in Section 6.08(b), the Company Board shall notify Parent of any such action it proposes to take and, during the Four 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 Four Day Period.
(d) Nothing contained in this Agreement shall prevent the Company Board from (x) taking taking, and disclosing to the Company’s stockholders Company shareholders, a position with respect to a tender contemplated by Rule 14d-9 or exchange offer by a third party pursuant to Rules 14d-9 and Rule 14e-2 promulgated under the Exchange ActAct with regard to any tender offer; provided, or (y) making such disclosure to the Company’s stockholders ashowever, in the good faith judgment that none of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that the Company may notBoard or the Special Committee shall, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or 6.08(b) propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding Without limiting the foregoing, prior to it is understood and agreed that any violation of the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined restrictions set forth in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group preceding sentence by any Company Representative, whether or not such Person or group has had previous discussions or negotiations with acting on behalf of the Company concerning a Superior Proposal (as defined below)or any of its Subsidiaries or any of their affiliates, provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required deemed to be disclosed by the Company to Parent by a breach of this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;6.08
Appears in 3 contracts
Sources: Acquisition Agreement (Goodys Family Clothing Inc /Tn), Acquisition Agreement (GMM Capital LLC), Acquisition Agreement (GMM Capital LLC)
No Solicitation. (a) The Company shall, and shall not, nor shall it permit any cause each of its Subsidiaries toSubsidiaries, nor shall it authorize (and shall use its best efforts not to permit) any affiliatecause their respective officers, officerdirectors, director or employee of, or representatives and agents (including any investment banker, attorney or other advisor accountant retained by it or representative any of its Subsidiaries) (collectively, “Company Representatives”) to, immediately cease any existing discussions or negotiations, if any, with any Third Party that may be ongoing with respect to an Acquisition Proposal and will use its best efforts to cause all Persons other than Parent who have been furnished with confidential information regarding the Company in connection with the solicitation of or discussions regarding an Acquisition Proposal within the 12 months prior to the date hereof promptly to return or destroy such information. The Company agrees not to, and to cause its Subsidiaries not to, release any third party from the confidentiality and stand still provisions of any agreement to which the Company or its Subsidiaries is a party or becomes a party, and will immediately take all steps necessary to terminate any approval that may have heretofore been given under any such provisions authorizing any Person to make an Acquisition Proposal, unless the Company Board reasonably determines in good faith that such Acquisition Proposal is, or is reasonably likely to be, a Superior Proposal. The Company shall not, and shall not authorize or permit any of its Subsidiaries or any Company Representative to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any knowingly encourage an Acquisition Proposal, (ii) furnish or disclose to any Third Party non-public information with respect to an Acquisition Proposal, (iii) negotiate or engage in substantive discussions with any Third Party with respect to an Acquisition Proposal or (iv) enter into any agreement (whether or not binding) or agreement in principle with respect to an Acquisition Proposal; provided, however, that at any time prior to the consummation of the Offer, in response to a bona fide written Acquisition Proposal that was not solicited by the Company, its Subsidiaries or any Company Representative and which the Company Board reasonably determines in good faith, after consulting with its financial advisors and legal counsel, constitutes, or is reasonably likely to constitute, a Superior Proposal, the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) and (B) participate in any discussions or negotiations with, and provided draft documents and agreements to, the Person making such Acquisition Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding any such Acquisition Proposal, or in connection with any Acquisition Proposalif (prior to furnishing such information to, or furnish entering into such discussions or negotiations with, such Person) the Company (A) provides reasonable notice to any Person any information or data with respect to or provide access Parent to the properties of effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, (B) provides Parent with all information to be provided to such Person which Parent has not previously been provided, and (C) receives from such Person an executed confidentiality agreement reasonably satisfactory to the Company Board with terms, as a whole, that are no less favorable to the Company than those contained in the Confidentiality Agreement.
(b) Except as set forth in this Section 8.8(b), the Company Board shall not (i) withdraw or any of its Subsidiariesmodify, or take any other action propose to knowingly facilitate withdraw or modify, in a manner adverse to Parent, the making of any proposal that constitutesCompany Recommendation, (ii) approve or recommend, or may reasonably be expected propose to lead toapprove or recommend, any Acquisition Proposal or (iii) enter into any agreement (whether or not binding) or agreement in principle with respect to any Acquisition Proposal or approve or resolve (other than a confidentiality agreement referred to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b8.8(a), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing). Notwithstanding the foregoing, prior to consummation of the time Offer, in response to the receipt of acceptance an unsolicited Acquisition Proposal, if the Company Board (A) reasonably determines in good faith after consultation with its legal counsel and financial advisors that such Acquisition Proposal is a Superior Proposal and (B) determines in good faith after consultation with its legal counsel that failure to take such action would be inconsistent with its fiduciary duties to the shareholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such approval and recommendation, withdraw, or modify or change in a manner adverse to Parent, the Company Recommendation (either, a “Company Recommendation Change”); provided, however, that no Company Recommendation Change shall be valid or effective until (i) the Company has provided written notice to Parent advising Parent that the Company Board has received a Superior Proposal, specifying in writing all of the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal and, (ii) Parent does not make, within three (3) Business Days after receipt of such notice from the Company, an offer that the Company Board reasonably determines in good faith, after consultation with its financial and legal advisors, is at least as favorable to the holders of Company Common Stock for payment pursuant as the Superior Proposal and during such three (3) Business Day period the Company reasonably considers and discusses in good faith all proposals submitted by Parent and, without limiting the foregoing, causes its financial advisors and legal advisors as requested by Parent to reasonably consider and discuss with Parent and its representatives such proposals in good faith. In the event that the Company enters into a definitive agreement with a Third Party with respect to a Superior Proposal and in connection therewith this Agreement is terminated, then, notwithstanding anything to the Offercontrary in the standstill provisions of the Confidentiality Agreement, Parent shall be entitled to present an Acquisition Proposal to the Company may furnish information concerning its businesses Board (it being understood that except as modified hereby such standstill provisions shall remain in full force and effect).
(c) Nothing contained in this Agreement shall prohibit the Company or its Subsidiaries, properties or assets the Company Board from (i) taking and disclosing to any Person or “group” (as defined in the shareholders of the Company a position contemplated by Rule 14e-2 promulgated under the Exchange Act and or (ii) making any disclosure to the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with shareholders of the Company concerning a Superior Proposal (as defined below), provided if the Company Board determines in good faith that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information disclosure is required to be disclosed by the Company to Parent by this Section 5.3) if:applicable law.
(xd) such Person or group has submitted a Superior Proposal;As used in this Agreement:
Appears in 3 contracts
Sources: Merger Agreement (Laserscope), Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
No Solicitation. (a) The From and after the date hereof, the Company shall not, nor and shall it not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries’ directors, officers, employees, agents or representatives to, nor shall it authorize directly or indirectly, (and shall use its best efforts not i) solicit, initiate or encourage any inquiries or the making of any proposal with respect to permit) any affiliatemerger, officerliquidation, director or employee ofrecapitalization, or any investment banker, attorney consolidation or other advisor or representative (collectively, “Representatives”) of business combination involving the Company or any of its Subsidiaries to, (i) solicit or initiate, acquisition of any capital stock or encourage, directly or indirectly, any inquiries relating to, or material portion of the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties assets of the Company or any of its Subsidiaries, or take any combination of the foregoing (any such proposal or transaction, other action than any such proposal by Parent, Merger Sub or their respective directors, officers, employees, agents and representatives, an “Acquisition Proposal”), (ii) have any discussions with or provide any confidential information or data to knowingly facilitate the making of any proposal that constitutesperson relating to an Acquisition Proposal, or may reasonably be expected to lead to, engage in any negotiations concerning an Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposalrecommend, or execute or enter into into, any letter of intent, agreement with respect in principle, or agreement to any Acquisition Proposal. Upon execution of this Agreement; provided, the Company will immediately cease however, that at any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, time prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, Meeting the Company may furnish information concerning its businesses and hold discussions in respect of any such proposal received that was not solicited or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with knowingly encouraged by the Company concerning if (x) the Special Committee determines in good faith, following consultation with counsel, that failure to do so would constitute or result in a Superior Proposal breach of its fiduciary duties under applicable law and (as defined below)y) prior to providing any information pursuant to this proviso, provided that such Person or group the Company shall have entered into a confidentiality agreementagreement with such third party on customary terms. The Company will promptly (within one business day) following receipt of any Acquisition Proposal advise Parent of the substance thereof (including the identity of the person making such Acquisition Proposal), and will keep Parent apprised of any related developments, discussions and negotiations (including the confidentiality terms and conditions of the Acquisition Proposal) on a current basis (and, in any event, within 48 hours of the occurrence of such developments, discussions or negotiations). For purposes of this Agreement, a “Superior Proposal” means a bona fide written Acquisition Proposal which the Board of Directors of the Company, acting upon the recommendation of the Special Committee (after consultation by such committee with its financial advisors and legal advisors), concludes in good faith, taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal (including any break-up fees, expense reimbursement provisions of which shall be no and conditions to consummation), (i) is more favorable to the stockholders of the Company, from a financial point of view, than the transactions contemplated by this Agreement and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed, without taking into account whether or not Parent would acquiesce to such third party than those transaction; provided that, for purposes of this definition of “Superior Proposal,” the term “Acquisition Proposal” shall have the meaning assigned to such term in this Section 6.03, except that “Acquisition Proposal” shall only be deemed to refer to a transaction involving the Confidentiality Agreement (provided that such confidentiality agreement must permit acquisition of a majority of the voting securities of the Company to disclose to Parent or all or substantially all of the information required to be disclosed by consolidated assets of the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;and its Subsidiaries.
Appears in 3 contracts
Sources: Merger Agreement (Td Banknorth Inc.), Merger Agreement (Toronto Dominion Bank), Merger Agreement (Toronto Dominion Bank)
No Solicitation. (a) The During the Pre-Closing Period, Company shall not, nor directly or indirectly, and the Company shall it permit use commercially reasonable efforts to ensure that its Subsidiaries and the respective Representatives of the Symyx Corporations do not, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Company Acquisition Proposal;
(ii) furnish any information regarding any of its Subsidiaries the Symyx Corporations to any Person in connection with or in response to any Company Acquisition Proposal;
(iii) engage in discussions or negotiations with any Person relating to, nor or that prior to such discussions or negotiations would reasonably be expected to give rise to, any Company Acquisition Proposal;
(iv) approve, endorse or recommend any Company Acquisition Proposal; or
(v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that prior to the Acceptance Date, this Section 5.03(a) shall it authorize not prohibit the Company from furnishing information regarding the Symyx Corporations to, or entering into discussions and negotiations with, any Person if: (A) the Company shall have received from such Person a bona fide Company Acquisition Proposal that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, the Company Board determines in good faith is, or would reasonably be expected to result in, a Company Superior Offer (and shall use its best efforts such proposal has not to permitbeen withdrawn); (B) such Company Acquisition Proposal did not result from any affiliate, officer, director or employee breach of, or any investment bankeraction inconsistent with, attorney any of the provisions set forth in this Section 5.03(a); (C) the Company Board concludes in good faith, after having consulted with its outside legal counsel, that failure to take such action would reasonably be expected to constitute a breach of the fiduciary duties of the Company Board to the Company’s stockholders under applicable law; (D) at least four Business Days prior to furnishing any information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to the Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (E) at least four Business Days prior to furnishing any information to such Person, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent or Made Available to Parent). Without limiting the foregoing, any violation of the restrictions contained in this Section 5.03(a) by any Subsidiary or Representative of the Company shall be deemed a breach of this Section 5.03(a) by the Company.
(b) During the Pre-Closing Period, the Company shall promptly (and in no event later than 24 hours) after receipt of any Company Acquisition Proposal: (i) advise Parent orally and in writing of any such Company Acquisition Proposal (including the identity of the Person making or submitting such Company Acquisition Proposal and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and (ii) provide to Parent a copy of any written Company Acquisition Proposal and a copy of all written materials (including copies of any written materials received via e-mail or other advisor electronic medium) received by the Company in connection with such Company Acquisition Proposal. The Company shall keep Parent reasonably informed with respect to: (A) the status of any such Company Acquisition Proposal, and (B) the status and terms of any material modification or representative proposed material modification thereto. The Company shall provide Parent with 48 hours prior notice (collectivelyor such lesser notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to consider any Company Acquisition Proposal.
(c) Subject to Section 5.03(a) the Company shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Company Acquisition Proposal.
(d) The Company agrees not to release or permit the release during the Pre-Closing Period of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “Representatives”) of standstill” or similar Contract to which the Company or any of its Subsidiaries to, (i) solicit is a party or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of under which the Company or any of its SubsidiariesSubsidiaries has any rights, and will use its commercially reasonable efforts during the Pre-Closing Period to cause each such agreement to be enforced at the request of Parent.
(e) Notwithstanding anything to the contrary contained in Section 5.03 or take elsewhere in this Agreement, at any other action time prior to knowingly facilitate the making Acceptance Time, the Company Board may: (1) approve, endorse or recommend any Company Acquisition Proposal; and (2) refuse to reaffirm the Board Recommendation, refuse to publicly state that the Offer, the Merger and this Agreement are in the best interest of any proposal the Company’s stockholders or refuse to issue a press release announcing its opposition to a Company Acquisition Proposal (each of the foregoing actions described in clauses “(1),” and “(2)” being referred to as a “Company Change in Recommendation”):
(i) if: (A) an unsolicited Company Acquisition Proposal is made to the Company and is not withdrawn; (B) the Company Board determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, that constitutessuch Company Acquisition Proposal constitutes a Company Superior Offer; (C) at least four Business Days prior to a Company Change in Recommendation, or may the Company provides Parent written notice of the Company Board’s intention to determine that such Company Acquisition Proposal is a Company Superior Offer; and (D) the Company Board determines in good faith, after having consulted with its outside legal counsel, that, in light of such Company Superior Offer, a failure to affect a Company Change in Recommendation could reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit constitute a breach of the fiduciary duties of the Company or the Company’s board of directors from (x) taking and disclosing Board to the Company’s stockholders under applicable law; or
(ii) if: (A) other than the development or circumstances contemplated by the preceding clause (i) of this Section 5.03(e), a position with respect material development or change in circumstances occurs or arises after the date of this Agreement that was neither known to any Symyx Corporation or any Representative of any Symyx Corporation nor reasonably foreseeable to any Symyx Corporation as of the date of this Agreement (such material development or change in circumstances being referred to as a tender “Company Intervening Event”); provided, however, that in no event shall the receipt, existence of or exchange offer by terms of a third party pursuant Company Acquisition Proposal or a Company Superior Offer or any inquiry relating thereto or the consequences thereof constitute a Company Intervening Event; (B) at least four Business Days prior (or such or such lesser notice as is provided to Rules 14d-9 and 14e-2 promulgated under the Exchange Actmembers of the Company Board) to any meeting of the Company Board at which the Company Board will consider whether such Company Intervening Event requires the Company Board to effect, or cause the Company to effect, a Company Change in Recommendation, the Company provides Parent with a written notice specifying the date and time of such meeting; and (yC) making the Company Board determines in good faith, after having consulted with its outside legal counsel, that, in light of such disclosure Company Intervening Event, a failure to make a Company Change in Recommendation could reasonably be expected to constitute a breach of the fiduciary duties of the Company Board to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 3 contracts
Sources: Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc)
No Solicitation. (a) The Company Elf shall not, nor shall it permit any of its Subsidiaries to, nor shall it or authorize (and shall use its best efforts not to permit) or permit any affiliatedirector, officer, director officer or employee of, of Elf or any of its Subsidiaries or any investment banker, attorney attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company Elf or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate, negotiate or encourage, or the submission oftake any other action knowingly to facilitate, any Acquisition Proposal, Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take otherwise cooperate in any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead toway with, any Acquisition Takeover Proposal, in each case other than a Takeover Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposalmade by Parent; provided, however, that nothing contained at any time prior to obtaining the written consent of TULIP as contemplated by Section 6.02 hereof, the Board of Directors of Elf may, in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect response to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actbona fide written Takeover Proposal that such Board of Directors reasonably determines in good faith, or (y) making such disclosure to the Company’s stockholders asafter consultation with its independent financial advisors, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning constitutes a Superior Proposal (as defined below), provided that and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 6.04, (x) furnish information with respect to Elf and its Subsidiaries to the person making such Person or group shall have entered into Takeover Proposal (and its representatives) pursuant to a confidentiality agreement, the confidentiality provisions of which shall be no agreement with terms not more favorable to such third party person than those provided for in the Confidentiality Agreement (Agreement, provided that all such confidentiality agreement must permit information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the Company to disclose person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal, provided that Elf shall have delivered to Parent prior written notice advising Parent that it intends to participate in such discussions or negotiations. Elf will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding Elf provided to any such parties prior to the information required date hereof pursuant to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person terms of any confidentiality agreements or group has submitted a Superior Proposal;otherwise.
Appears in 3 contracts
Sources: Merger Agreement (Flowers Industries Inc /Ga), Merger Agreement (Keebler Foods Co), Merger Agreement (Kellogg Co)
No Solicitation. Immediately following the execution of this Agreement, the Company will terminate any and all existing activities, discussions and negotiations with third parties (aother than Parent and GranCare) with respect to any possible Acquisition Transaction (as defined below). The Company and its subsidiaries and their respective officers, directors and employees shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company and its subsidiaries will use all reasonable efforts to cause their representatives, agents or any of its Subsidiaries affiliates not to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating toknowingly encourage, solicit, or the submission of, any Acquisition Proposal, (ii) participate in initiate any discussions or negotiations regarding with, any Acquisition Proposalcorporation, partnership, person or in connection with other entity or group (other than the Parent, the Sub and GranCare and any Acquisition Proposalaffiliate or associate of the Parent, the Sub and GranCare and any of their respective directors, officers, employees, representatives and agents) concerning any merger, consolidation, business combination, liquidation, reorganization, sale of substantial assets, sale of shares of capital stock or furnish to any Person any information or data with respect to or provide access to the properties of similar transactions involving the Company or any material subsidiary of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company (each an "Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition ProposalTransaction"); provided, however, that if during the 45 days following the date of this Agreement, the Company's Board of Directors determines, after consultation with counsel, that it is required to do so in the exercise of its fiduciary duties to the Company or its stockholders, the Board of Directors may respond to, or engage in discussions with respect to, a written offer for an Acquisition Transaction during such 45 day period; and provided further that nothing contained in this Section 5.3 or any other provision hereof 5.02 shall prohibit the Company or the Company’s board its Board of directors Directors from (x) taking and disclosing to the Company’s 's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 14e-2(a) promulgated under the Exchange Act, Act or (y) from making such other disclosure to the Company’s 's stockholders aswhich, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal as advised by outside counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the The Company will immediately cease promptly communicate to Parent the terms and conditions of any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior proposal for an Acquisition Transaction that it may receive and will keep Parent informed as to the time status of acceptance of Company Common Stock for payment any actions, including any discussions, taken pursuant to the Offer, the Company may furnish information concerning its businesses such proposed or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;contemplated Acquisition Transaction.
Appears in 3 contracts
Sources: Merger Agreement (New Grancare Inc), Agreement and Plan of Merger (Chase Equity Associates L P), Agreement and Plan of Merger (Living Centers of America Inc)
No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of of, the Company or any of its Subsidiaries Company Subsidiary to, (i) solicit or initiate, or encourage, directly or indirectlyindirectly solicit, any inquiries relating to, initiate or knowingly encourage the submission of, of any Acquisition Company Takeover Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action designed to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or Company Takeover Proposal, (iiiii) enter into any agreement with respect to any Acquisition Company Takeover Proposal or approve (iii) directly or resolve indirectly enter into, participate in or continue any discussions or negotiations regarding, or furnish to approve any Acquisition person any information with respect to, any Company Takeover Proposal; provided, however, that, prior to obtaining the Company Stockholder Approval, the Company and its Representatives may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a Company Takeover Proposal that nothing contained in was not solicited by the Company and that did not otherwise result from a breach or a deemed breach of this Section 5.3 or any other provision hereof shall prohibit 5.02(a) and that the Company Board or the Company’s board of directors from (x) taking Special Committee determines, after consultation with its financial advisor and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal outside counsel, is reasonably likely to lead to a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations with such person and its Representatives regarding such 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. The Company shall, and shall cause its Representatives to, cease immediately all discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to be required under applicable lawlead to, provided that a Company may not, except as permitted by Section 5.3(b), Takeover Proposal.
(b) Neither the Company Board nor the Special Committee shall (i) withdraw or modifymodify in a manner adverse to Parent or Sub, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board Recommendation or the Special Committee of this Agreement or the Merger, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or (iii) approve or recommend, or propose to approve or recommend recommend, any Acquisition Company Takeover Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior if the Company Board or the Special Committee determines in good faith, after consultation with outside counsel, that it is necessary to the time of acceptance of Company Common Stock for payment pursuant do so in order to the Offercomply with their fiduciary obligations, the Company Board or the Special Committee may furnish information concerning withdraw or modify its businesses approval or its Subsidiaries, properties recommendation of the Merger and this Agreement.
(c) The Special Committee promptly shall advise Parent orally and in writing of any Company Takeover Proposal made to the Special Committee or assets any inquiry with respect to or that could reasonably be expected to lead to any Person or “group” (as defined in the Exchange Act Company Takeover Proposal and the rules promulgated thereunderidentity of the person making any such Company Takeover Proposal or inquiry. The Special Committee shall (i) keep Parent fully informed of the status, including any change to the details, of any such Company Takeover Proposal or inquiry and may negotiate (ii) provide Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and participate in discussions and negotiations with such Person other written material sent or group whether or not such Person or group has had previous discussions or negotiations with provided to the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such from any third party than those in connection with any Company Takeover Proposal or sent or provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent any third party in connection with any Company Takeover Proposal other than materials already provided by the Company to Parent.
(d) Nothing contained in this Section 5.35.02 shall prohibit the Company from making any required disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with its obligations under applicable Law; provided, however, that in no event shall the Company, the Company Board or any committee thereof take, agree or resolve to take any action prohibited by Section 5.02(b). Except as specifically permitted by, or as required in order to take any action specifically permitted by, this Agreement, including this Section 5.02(d), the proviso in Section 5.02(a) if:
or the last sentence of Section 5.02(b) (xbut excluding the taking of any action pursuant to the resolutions of the Board of Directors of the Company appointing and specifying the duties of the Special Committee which is not otherwise specifically permitted by, or required in order to take any action specifically permitted by, this Agreement), the Special Committee may not take, agree or resolve to take any action that would reasonably be expected to interfere with or delay (i) such Person the receipt of the Company Stockholder Approval or group has submitted a Superior Proposal;(ii) the consummation of the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Cruzan International, Inc.), Merger Agreement (Absolut Spirits CO INC)
No Solicitation. (a) The 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 shall not, nor and shall it permit any of cause its Subsidiaries and their respective affiliates not to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of cause the Company or any of its Subsidiaries Representatives not to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any Acquisition Proposal, encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any including by way of furnishing information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesassistance), or take any other action to knowingly facilitate facilitate, any inquiry in connection with or the making of any proposal from any Person that constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal (as defined in Section 5.08(f)), (ii) enter into, explore, maintain, participate in or continue any discussion or negotiation with any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) regarding an Acquisition Proposal, or furnish to any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) any non-public information or otherwise assist or participate in, facilitate or encourage, any effort or attempt by any other Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. 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, until the date of the approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, the Company Board, based upon the recommendation of the Special Committee, shall not be prohibited by this Section 5.08 from 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 5.08) if (A) the Company Board, based upon the recommendation of the Special Committee, 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 to the Company’s shareholders under applicable Law, (B) the Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal (as defined in Section 5.08(g)) and (C) prior to furnishing such information to, or engaging in discussions or negotiations regarding an Acquisition Proposal or the Transactions 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 Confidentiality Agreement. For the avoidance of doubt, each such confidentiality agreement shall contain an express provision prohibiting such Person from making any Acquisition Proposals other than as requested by the Company Board following a determination by the Company Board that the initial Acquisition Proposal does not constitute a Superior Proposal.
(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 engage in discussions or negotiations with, any Person on the terms contemplated in Section 5.08(a), the Company Board may, prior to the approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, 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, (B) the Company has complied with Section 5.08(c), (C) the Company Board, based upon the recommendation of the Special Committee, 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 to the Company’s shareholders under applicable Law, and (D) the Company has complied with Section 5.02(a) and the Shareholder Approval has not been obtained by reason of the failure to obtain the required vote at the Shareholders Meeting.
(c) The Company (i) will promptly (but in any event within one Business Day) notify Parent orally and in writing of the receipt of any Acquisition Proposal or any inquiry by which any Person (other than Parent or Acquisition Corp.) expresses an interest or intention to make an Acquisition Proposal, including any request for non-public information, the terms and conditions of such request, Acquisition Proposal or inquiry (including a copy of any proposed agreements and financing commitments) and the identity of the Person making such request, Acquisition Proposal or inquiry and (ii) will keep Parent fully 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 5.08(a), the Company Board shall promptly (but in any event within one Business 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. At least four Business Days (the “Four Day Period”) prior to taking any of the actions referred to in Section 5.08(b), the Company Board shall notify Parent of any such action it proposes to take and during the Four Day Period, the Company Board or the Special Committee, as applicable, shall negotiate in good faith with Parent with respect to any Acquisition revised proposal to acquire the Common Shares that Parent may make prior to or during the Four Day Period. If, during the Four Day Period, the Parent makes a proposal that either the Company Board or the Special Committee determines in good faith, after consultation with a financial advisor of nationally recognized reputation, is at least as favorable to the shareholders of the Company as the applicable Superior Proposal or approve obviates the need for a change in the Company Board’s favorable recommendation, as the case may be, then the Company Board shall not take any of the actions referred to in Section 5.08(b) or resolve to approve any Acquisition Proposal; providedwithdraw, that nothing modify or reverse its approval or recommendation of this Agreement and the Merger.
(d) Nothing contained in this Section 5.3 or any other provision hereof Agreement shall prohibit prevent the Company or the Company’s board of directors Board from (x) taking taking, and disclosing to the Company’s stockholders Company shareholders, a position with respect to a tender contemplated by Rule 14d-9 or exchange offer by a third party pursuant to Rules 14d-9 and Rule 14e-2 promulgated under the Exchange ActAct with regard to any tender offer; provided, or (y) making such disclosure to the Company’s stockholders ashowever, in the good faith judgment that none of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that the Company may notBoard or the Special Committee shall, except as permitted by Section 5.3(b5.08(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal. Without limiting the foregoing, it is understood and agreed that any violation of the restrictions set forth in the preceding sentence by any Company Representative, whether or enter into not acting on behalf of the Company or any agreement with respect of its Subsidiaries or any of their affiliates, shall be deemed to any Acquisition Proposal. Upon execution be a breach of this Agreement, Section 5.08 by the Company.
(e) The Company and each of its Subsidiaries shall immediately cease and cause its affiliates and the Company will immediately Representatives to cease any and all existing activities, discussions or negotiations with any Person parties (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) conducted heretofore with respect to any Acquisition Proposal, and shall use its commercially reasonable efforts to cause any such parties in possession of confidential or proprietary information about the Company that was furnished by or on behalf of the Company 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 5% or more of the total consolidated assets of the Company or any of its Subsidiaries, in a single transaction or series of transactions, (ii) any direct or indirect acquisition or purchase of 5% or more of any class of equity securities of the Company or any of its Subsidiaries, in a single transaction or series of transactions (including through a merger, consolidation, share exchange, business combination or other similar transaction), (iii) any tender offer or exchange offer (including a self-tender offer) that if consummated would result in any person beneficially owning 5% or more of any class of equity securities of the Company or any of its Subsidiaries, (iv) any merger, consolidation, share exchange, business combination, reorganization, recapitalization, reclassification, liquidation or dissolution or other similar transaction involving the Company or any of its Subsidiaries or (v) any public announcement of an agreement, proposal, plan or intention to do any of the foregoing. Notwithstanding , other than the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent transactions contemplated by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (National Home Health Care Corp), Agreement and Plan of Merger (National Home Health Care Corp)
No Solicitation. (a) The Company shall notDuring the Interim Period, nor shall it permit and except as permitted by this Section 5.3 or otherwise in connection with any of its Subsidiaries toAsset Dispositions, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) none of the Company or any of its the Company Subsidiaries nor any of the directors and officers of the Company or the Company Subsidiaries shall, and the Company shall direct the Company and the Company Subsidiaries’ other Representatives not to, (i) solicit or initiate, or encourage, directly or indirectly:
(i) initiate, solicit or knowingly encourage or facilitate any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal or offer that constitutes, or may would reasonably be expected to lead to, any Acquisition Proposal (other than discussions solely to clarify whether such proposal or offer constitutes an Acquisition Proposal or informing such Person of the provisions contained in this Section 5.3(a));
(ii) engage in, continue or otherwise participate in any discussions (other than informing any Person of the provisions contained in this Section 5.3(a)) or negotiations regarding, or provide any non-public information or data to any Person or afford access to the business properties, assets, books, or records of the Company or any of its Subsidiaries to any third party, in each case relating to, any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal;
(iii) enter into amend or grant any waiver or release under any standstill or similar agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit class of equity securities of the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment any of the Company’s board of directorsCompany Subsidiaries; provided, pursuant to advice from independent however, that if, and only if, the Company Board determines in good faith, after consultation with its outside legal counsel, is reasonably expected that the failure to amend or grant any waiver or release under any such standstill or similar agreement would be required inconsistent with the Company Board’s fiduciary duties under applicable lawLaw, provided that the Company may notthen amend or grant a waiver or release under such standstill or similar agreement, solely to the extent necessary to permit a Person to make, on a confidential basis to the Company Board, an Acquisition Proposal, conditioned upon such Person agreeing to disclosure of such Acquisition Proposal to Parent as contemplated by this Section 5.3;
(iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL;
(v) otherwise knowingly facilitate any effort or attempt by any third party (or its potential sources of financing) to make any proposal or offer that constitutes an Acquisition Proposal;
(vi) except as permitted by Section 5.3(b5.3(e), withdraw or modifyapprove, or propose to withdraw or modifyendorse, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, execute or enter into any letter of intent, agreement with respect in principle, term sheet, memorandum of understanding, merger agreement, acquisition agreement or other similar Contract relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”); or
(vii) approve, authorize, agree or publicly announce any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect intention to do any of the foregoing. Notwithstanding Any breach by the foregoingdirectors, prior to the time officers and attorneys of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its any of the Company Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with other Representative of the Company concerning a Superior Proposal (as defined belowat the Company’s direction), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which this Section 5.3(a) shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed deemed a breach hereof by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Company.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
No Solicitation. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor advisor, agent or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries Subsidiary (collectively, "Company Representatives") to, : (i) solicit solicit, initiate or initiate, or encourage, directly or indirectly, any inquiries relating to, or knowingly encourage the submission of, any Acquisition Proposal, Company Takeover Proposal (as defined below); (ii) enter into any agreement with respect to any Company Takeover Proposal; or (iii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Company Takeover Proposal; provided, however, that, at any time prior to the consummation of the Offer, the Company's Board of Directors may, in response to a Superior Proposal (as defined below) that nothing was not solicited by the Company or any Company Representative on or after the date hereof and that did not otherwise result from a breach of this Section 5.2(a), and subject to providing prior written notice of its decision to take such action to Parent and compliance with Section 5.2(b), participate in discussions and negotiations regarding such Superior Proposal and furnish information concerning the Company to the Person making such Superior Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business that constitutes 25% or more of the net revenues, net income or the assets of the Company and the Subsidiaries taken as a whole, or 25% or more of any class of equity securities of the Company or any Subsidiary, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 25% or more of any class of equity securities of the Company or any Subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Subsidiary, other than the transactions contemplated by this Agreement. For purposes of this Agreement, a "Superior Proposal" means any bona fide 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, 100% of the outstanding shares of Common Stock or all or substantially all the assets of the Company and otherwise on terms which the Board of Directors determines in its good faith judgment (based on the written advice of its financial advisors) (x) is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the third party making such proposal, and (y) provides greater present value to the Company's stockholders than the cash consideration to be received by such stockholders pursuant to the Offer and the Merger, as the Offer and the Merger may be amended from time to time.
(b) The Company's Board of Directors shall promptly advise Parent orally and in writing of the existence of any Takeover Proposal or Superior Proposal.
(c) Nothing contained in this Section 5.3 or any other provision hereof 5.2 shall prohibit the Company or the Company’s board Board of directors Directors from (x) taking and disclosing to the Company’s its stockholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange ActAct or from changing its recommendation with respect to the Offer and this Agreement, or (y) making such any disclosure to the Company’s stockholders as's stockholders, if, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal after consultation with outside counsel, is reasonably expected failure to be required take any such action would result in a breach of its fiduciary duties to stockholders under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (D&b Acquisition Sub Inc), Merger Agreement (Dave & Busters Inc)
No Solicitation. (a) The From and after the date of this Agreement until the Closing Date or termination of this Agreement pursuant to Section 10, the Company shall and the Selling Lenders will not, nor shall it will they authorize or permit any of its Subsidiaries totheir respective officers, nor shall it authorize (and shall use its best efforts not to permit) any affiliatedirectors, officer, director affiliates or employee of, employees or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or retained by any of its Subsidiaries them to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate, encourage or induce the making, submission of, or announcement of any Acquisition ProposalProposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any non-public information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Acquisition Proposal or Proposal, (iii) enter into engage in discussions with any agreement person with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b)to the existence of these provisions, withdraw or modify(iv) approve, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve endorse or recommend any Acquisition Proposal, or (v) enter into any letter of intent or similar document or any contract, agreement with respect or commitment contemplating or otherwise relating to any Acquisition Proposal, except in each case to the extent any such action is undertaken to comply with any applicable legal requirement. Upon execution of this Agreement, The Company and the Company Selling Lenders will immediately cease any and all existing activities, discussions or negotiations with any Person parties conducted heretofore with respect to any Acquisition Proposal to the extent prohibited by the preceding sentence. Without limiting the foregoing, it is understood that any violation of the foregoingrestrictions set forth in the preceding two sentences by any officer, director or employee of the Company or the Selling Lenders or any investment banker, attorney or other advisor or representative of the Company or the Selling Lenders shall be deemed to be a breach of this Section 5.4 by the Company or the Selling Lenders. Notwithstanding the foregoing, prior the Company may, in response to an unsolicited, written Acquisition Proposal (as defined below) which the Board of Directors of the Company determines, in good faith, would reasonably be expected to lead to a Superior Proposal (as hereinafter defined) and pursuant to an executed confidentiality agreement with customary terms and conditions at least as restrictive as the confidentiality provisions of the agreement entered into among the parties hereto, (A) furnish information with respect to the time of acceptance of Company Common Stock for payment pursuant to the Offerperson who made such unsolicited proposal and afford such person access to the properties, books, records, officers, and employees of the Company may furnish information concerning its businesses or and its Subsidiaries, properties and (B) participate in discussions with, or assets to accept a Superior Proposal from, such person regarding such Superior Proposal.
(b) For purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any Person offer or “proposal from a third party relating to: (A) any acquisition or purchase from the Company by any person or "group” " (as defined in under Section 13(d) of the Exchange Act and the rules promulgated and regulations thereunder) and may negotiate and participate of more than a 20% interest in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the total outstanding voting securities of the Company concerning a Superior Proposal or any of its Subsidiaries or any tender offer or exchange offer that if consummated would result in any person or "group" (as defined belowunder Section 13(d) of the Exchange Act and the rules and regulations thereunder) beneficially owning 20% 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 pursuant to which the stockholders of the Company immediately preceding such transaction hold less than 80% of the equity interests in the surviving or resulting entity of such transaction; (B) any sale, lease (other than in the ordinary course of business), provided that such Person or group shall have entered into a confidentiality agreementexchange, the confidentiality provisions of which shall be no more favorable to such third party transfer, license (other than those provided for in the Confidentiality Agreement ordinary course of business), acquisition, or disposition of more than 50% of the assets of the Company; (provided that such confidentiality agreement must permit C) any sale, transfer or disposition of the Company to disclose to Parent all Debt by the Selling Lenders; or (D) any liquidation or dissolution of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Company.
Appears in 2 contracts
Sources: Loan Purchase Agreement (Mobilepro Corp), Loan Purchase Agreement (Davel Communications Inc)
No Solicitation. (a) The Company shall notExcept as set forth below, nor shall it permit from and after the date of this Agreement until the Effective Time, no party shall, directly or indirectly through any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director director, employee, representative or employee of, agent of such party or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, otherwise: (i) solicit or solicit, initiate, or encourage, directly or indirectly, encourage any inquiries relating toor proposals that constitute, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, share exchange, business combination, sale of all or substantially all assets, sale of shares of capital stock or similar transactions other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals an "Acquisition Proposal"); (ii) engage or participate in negotiations or external discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal Proposal; or (iii) agree to, enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; providedinto, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actaccept, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into . Target represents and warrants that it has the legal right to terminate any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, pending discussions or negotiations with relating to an Acquisition Proposal without payment of any Person conducted heretofore with respect to any of the foregoing. fee or other penalty.
(b) Notwithstanding the foregoingforegoing to the contrary, prior to receipt by a party, in accordance with Delaware Law, of affirmative votes or written consents from such party's stockholders holding a sufficient number of Target Capital Stock or Acquiror Capital Stock, as the time case may be, to adopt this Agreement and approve the Merger provided for herein, such party's Board of acceptance Directors may take the foregoing actions described in this Section 6.3, if, upon receipt of Company Common Stock for payment pursuant an unsolicited Acquisition Proposal, they have been advised in an opinion of reputable legal counsel that such actions are required to the Offer, the Company may furnish information concerning its businesses discharge such party's directors' fiduciary duties under applicable Delaware Law and such party's Board of Directors concludes in good faith that an Acquisition Proposal constitutes or its Subsidiaries, properties or assets is reasonably likely to any Person or “group” (as defined result in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below).
(c) Notwithstanding anything to the contrary set forth in this Agreement, provided that such Person or group Acquiror shall have entered into a confidentiality agreementthe right and option, exercisable by Acquiror by delivery of its written notice to Target on or before the confidentiality provisions fifth (5th) business day following Acquiror's receipt of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all written notice from Target of the information required to be disclosed determination by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted its Board of Directors that an Acquisition Proposal constitutes a Superior Proposal;, to match the terms and conditions of the Superior Proposal and to effect the acquisition of Target and/or the other transactions proposed in the Superior Proposal on terms and subject to the conditions set forth in the Superior Proposal. No modifications or amendments may be made to any Superior Proposal after notice has been given to Acquiror of the existence of such Superior Proposal without affording to Acquiror the right and option, upon terms and in accordance with the conditions set forth above in this Section 6.3, to effect a transaction upon the terms of such Superior Proposal, as modified.
Appears in 2 contracts
Sources: Merger Agreement (Convio, Inc.), Merger Agreement (Convio, Inc.)
No Solicitation. (a) The As of the date hereof, the Company shall immediately cease any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal and, if applicable, shall seek to have returned to the Company any confidential information that had been provided in any such discussions or negotiations. From and after the date hereof until the earlier to occur of the Acceptance Time or the date of termination of this Agreement in accordance with Article VIII, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use or permit any of its best efforts not to permit) any affiliateofficers, officer, director directors or employee of, employees or any Affiliate, investment banker, attorney financial advisor, attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company retained by it or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any Acquisition Proposal, knowingly encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any including by way of furnishing information or data with respect to or provide access to the properties of the Company or any of its Subsidiarieswhich has not been previously publicly disseminated), or take any other action designed to knowingly facilitate facilitate, any inquiry or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to any Takeover Proposal (other than an Acceptable Confidentiality Agreement) or (iii) enter into into, continue or otherwise participate in any agreement with respect to discussions or negotiations regarding any Acquisition Proposal or approve or resolve to approve any Acquisition Takeover Proposal; provided, however, that nothing if, prior to the Acceptance Time, following the receipt of a Superior Proposal or a Takeover Proposal that the Company Board determines in good faith is reasonably expected to lead to a Superior Proposal, and the Company Board determines in good faith, after consultation with outside legal counsel, that a failure to take action with respect to such Takeover Proposal would be inconsistent with its fiduciary duties (it being understood that, for all purposes of this Agreement, references to fiduciary duties of the Company Board shall include the duties of individual directors under the MGCL) to the Company and its stockholders under applicable Law, the Company may, in response to such Takeover Proposal, and subject to compliance with Section 6.3(c), (A) furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a confidentiality agreement (an “Acceptable Confidentiality Agreement”) that contains provisions not less favorable to the Company in all material respects than those contained in this Section 5.3 or any other the Confidentiality Agreement; provided that such Acceptable Confidentiality Agreement need not include a comparable standstill provision hereof shall prohibit if the Company or the Company’s board of directors from (x) taking and disclosing to waives the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under standstill provisions of the Exchange Act, Confidentiality Agreement in favor of Parent or (y) making similarly modifies the standstill provisions of the Confidentiality Agreement applicable to Parent, and (B) engage in discussions or negotiations with such disclosure party regarding such Takeover Proposal. It is agreed that any violation of the restrictions set forth in the preceding sentence by any officers, directors or employees or any Affiliate, investment banker, financial advisor, attorney, accountant or other Representative of the Company or any of the Company Subsidiaries shall be deemed to be a breach of this Section 6.3(a) by the Company’s stockholders as.
(b) Except as expressly permitted in this Section 6.3(b), in neither the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b)Board nor any committee thereof shall (1) withhold, withdraw or modifymodify or qualify, or propose publicly to withhold, withdraw or modify, modify or qualify the Company Board Recommendation, (2) take any other action or make any other statement in connection with the transactions contemplated by this Agreement inconsistent with the Company Recommendation or approve (3) approve, determine to be advisable, or recommend, or propose publicly to approve or recommend any Acquisition Proposalapprove, determine to be advisable, or enter into recommend, any agreement with respect Takeover Proposal ((1), (2) and (3) being referred to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. as an “Adverse Recommendation Change”).
(i) Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the OfferAcceptance Time, the Company Board may furnish (in each case, subject to compliance with this Section 6.3(b) and to compliance with Sections 6.3(a) and 6.3(c)) effect an Adverse Recommendation Change and, subject to compliance with Section 8.1(c)(i), terminate this Agreement in order to enter into a binding agreement for a Superior Proposal if: (i) a written Takeover Proposal is or has been made to the Company by a third party and such Takeover Proposal is not withdrawn; (ii) the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Takeover Proposal constitutes a Superior Proposal; (iii) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make an Adverse Recommendation Change or terminate this Agreement would be inconsistent with the exercise of its fiduciary duties to the Company and its stockholders under applicable Laws; (iv) the Company Board provides Parent at least three (3) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Superior Proposal that is specified in Section 6.3(c), as well as a copy of such Takeover Proposal; (v) during the three (3) Business Days following such written notice (or such shorter period as is specified below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent wishes to negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Superior Proposal; and (vi) at the end of the three (3) Business Day period described in the foregoing clause (v), the Company Board concludes in good faith, after consultation with the Company’s (x) outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed in writing by Parent), that the Takeover Proposal continues to be a Superior Proposal and (y) outside legal counsel, that the failure to make such Adverse Recommendation Change or terminate this Agreement would be inconsistent with the exercise by the Company Board of its fiduciary duties to the Company and its stockholders under applicable Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Takeover Proposal for purposes of this Section 6.3; provided, however, that the notice period and the period during which the Company Board and its Representatives are required to negotiate in good faith with Parent regarding any revisions to the terms of this Agreement proposed by Parent in response to such new Takeover Proposal pursuant to clause (v) above shall expire on the later to occur of (x) 48 hours after the Company Board provides written notice of such new Takeover Proposal to Parent and (y) the end of the original three (3) Business Day period described in clause (v) above. Nothing in this Section 6.3(b) shall permit the Company, prior to termination of this Agreement, to enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to any Takeover Proposal or Superior Proposal (other than an Acceptable Confidentiality Agreement). Unless this Agreement has been terminated in accordance with Section 7.1, the Company Board may not submit to the vote of its stockholders any Takeover Proposal other than the transactions contemplated by this Agreement.
(ii) Nothing in this Agreement shall prohibit or restrict the Company Board, in circumstances not involving or relating to a Takeover Proposal, from effecting an Adverse Recommendation Change in response to material events or changes arising after the date hereof that were not known or reasonably foreseeable to the Company as of or prior to the date hereof (an “Intervening Event”) if (and only if) (A) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the exercise of its fiduciary duties to the Company and its stockholders under applicable Laws; (B) the Company Board provides Parent at least three (3) Business Days’ prior written notice of its intention to take such action, which notice shall include a reasonably detailed description of the Intervening Event; (C) during the three (3) Business Days following such written notice (or such shorter period as is specified below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent wishes to negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Intervening Event; and (D) at the end of the three (3) Business Day period described in the foregoing clause (C), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make such Adverse Recommendation Change would be inconsistent with the exercise by the Company Board of its fiduciary duties to the Company and its stockholders under applicable Law. Any material changes to an Intervening Event will be deemed to be a new Intervening Event for purposes of this Section 6.3; provided, however, that the notice period and the period during which the Company Board and its Representatives are required to negotiate in good faith with Parent regarding any revisions to the terms of this Agreement proposed by Parent in response to such new Intervening Event pursuant to clause (C) above shall expire on the later to occur of (x) 48 hours after the Company Board provides written notice of such new Intervening Event to Parent and (y) the end of the original three (3) Business Day period described in clause (C) above.
(c) In addition to the obligations of the Company set forth in Sections 6.3(a) and 6.3(b), the Company shall promptly, and in any event no later than 24-hours after it receives any Takeover Proposal, advise Parent orally and in writing of any request for confidential information in connection with a Takeover Proposal or of any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal and the identity of the Person making such request or Takeover Proposal and shall keep Parent promptly advised of all changes to the material terms of any Takeover Proposal. The Company shall, promptly and in any event within 24 hours, provide to Parent any non-public information concerning the Company and the Company Subsidiaries that the Company provides (including through its businesses or its Subsidiaries, properties or assets Representatives) to any third Person in connection with any Takeover Proposal after the date hereof that was not previously provided to Parent.
(d) Nothing contained in this Section 6.3 or “group” Section 6.4 shall prohibit the Company Board from (as defined in i) taking and disclosing to their stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act and or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the rules promulgated thereunderExchange Act or (ii) and may negotiate and participate making any disclosure to their stockholders if the Company Board determines in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations good faith, after consultation with the Company concerning a Superior Proposal (as defined below)Company’s outside counsel, provided that the failure to make such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall disclosure would reasonably be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required likely to be disclosed by the Company to Parent by this Section 5.3) if:inconsistent with applicable Law.
(xe) such Person or group has submitted a Superior Proposal;For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Hillshire Brands Co), Merger Agreement (Tyson Foods Inc)
No Solicitation. (a) The Company From the execution and delivery of this Agreement and until the earlier to occur of the Effective Time and termination of this Agreement pursuant to Section 7.1 hereof, Seagate and its Subsidiaries shall not, nor and they shall it permit any of its Subsidiaries tocause their respective officers, nor shall it authorize (and shall use its best efforts not to permit) any affiliatedirectors, officer, director affiliates or employee of, employees or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or retained by any of its Subsidiaries them not to, directly or indirectly (i) solicit or solicit, initiate, encourage or encourageinduce the making, directly submission or indirectly, announcement of any inquiries relating to, or the submission of, any Seagate Acquisition ProposalProposal (as defined in Section 5.4(b) hereof), (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Seagate Acquisition Proposal Proposal, (iii) engage in discussions with any person with respect to any Seagate Acquisition Proposal, (iv) subject to the terms of Section 5.2(c) hereof, approve, endorse or recommend any Seagate Acquisition Proposal, or (iiiv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Seagate Acquisition Transaction (as defined in Section 5.4(b) hereof); provided, however, that until the date on which this Agreement is approved by the requisite vote of the stockholders of Seagate, the terms of this Section 5.4(a) shall not prohibit Seagate from furnishing information regarding Seagate and its Subsidiaries to, entering into a confidentiality or non-disclosure agreement with, or entering into discussions with, any person or group in response to a Seagate Superior Offer submitted by such person or group (and not withdrawn) if (a) neither Seagate nor any agents or representative of Seagate and its Subsidiaries shall have violated any of the restrictions set forth in this Section 5.4(a), (b) the Board of Directors of Seagate concludes in good faith, after consultation with its outside legal counsel, that such action is necessary in order for the Board of Directors of Seagate to comply with its fiduciary obligations to the stockholders of Seagate under applicable Law, (c) Seagate receives from such person or group an executed confidentiality or non-disclosure agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such person or group by or on behalf of Seagate and containing terms no less favorable to the disclosing party than the terms of the Confidentiality Agreement (including with respect to any Acquisition Proposal standstill arrangements, unless the standstill arrangements in the Confidentiality Agreement are waived and (d) prior to furnishing any such non-public information to such person or approve group, or resolve to approve entering into negotiations or discussions, Seller notifies Purchaser promptly of such inquiries, proposals or offers received by, any Acquisition Proposal; providedsuch information requested from, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the Company name of the person and the terms and conditions of any inquiries, proposals or the Company’s board of directors from (x) taking offers, and disclosing furnishes such non-public information to Veritas to the Company’s stockholders a position with respect extent such information has not been previously furnished to a tender or exchange offer by a third party pursuant to Rules 14d-9 Veritas. Seagate and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will its subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Person parties conducted heretofore with respect to any Seagate Acquisition Proposal.
(b) For all purposes of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offerand under this Agreement, the Company may furnish information concerning its businesses term "Seagate Acquisition Proposal" shall mean any offer or its Subsidiaries, properties proposal (other than an offer or assets proposal by Veritas) relating to any Person Seagate Acquisition Transaction. For all purposes of and under this Agreement, "Seagate Acquisition Transaction" shall mean any transaction or “series of related transactions, other than the transactions contemplated by this Agreement or the OD Documents, involving: (i) any acquisition or purchase from Seagate by any person or "group” " (as defined in under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) and may negotiate and participate of more than fifteen percent (15%) in discussions and negotiations with such Person interest of the total outstanding voting securities of Seagate, or group whether any tender offer or not such Person exchange offer that if consummated would result in any person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal "group" (as defined belowunder Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) beneficially owning more than fifteen percent (15%) of the total outstanding voting securities of Seagate, or any merger, consolidation, business combination or similar transaction involving Seagate pursuant to which the stockholders of Seagate immediately preceding such transaction would hold less than fifteen percent (15%) of the equity interests in the surviving or resulting entity of such transaction; (ii) any sale, lease (other than in the ordinary course of business), provided that such Person or group shall have entered into a confidentiality agreementexchange, the confidentiality provisions of which shall be no more favorable to such third party transfer, license (other than those provided for in the Confidentiality Agreement ordinary course of business), acquisition or disposition of more than fifteen percent (provided that such confidentiality agreement must permit the Company to disclose to Parent all 15%) of the information required to be disclosed assets and properties of Seagate; or (iv) any liquidation or dissolution of Seagate, excluding, in all cases any disposition of the assets covered by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;OD Documents.
Appears in 2 contracts
Sources: Merger Agreement (Seagate Technology Malaysia Holding Co Cayman Islands), Agreement and Plan of Merger and Reorganization (Seagate Technology Holdings)
No Solicitation. (a) The Company shall From and after the date of this Agreement until the earlier to occur of the Closing or termination of this Agreement pursuant to its terms, Seller will not, nor shall it permit any of and Seller will cause its Subsidiaries respective Affiliates, shareholders, directors, officers, employees, investment bankers, attorneys, agents and representatives not to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectlyindirectly (a) solicit, entertain, negotiate, encourage, enter into or consummate any Acquisition Proposal (as defined herein) by any person, entity, or group (other than Purchaser and its Affiliates, agents and representatives) or (b) share information concerning the Acquired Business or any material part of the Acquired Business, or afford access to the properties, Books or Records of Seller relating to the Acquired Business, or otherwise assist or facilitate, or enter into any agreement or understanding with, any inquiries relating toperson, entity or the submission ofgroup (other than Purchaser and its Affiliates, any Acquisition Proposalagents, (iiand representatives) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution For purposes of this Agreement, an “Acquisition Proposal” means any proposal or offer relating to any merger, consolidation, sale or license of substantial assets or similar transactions involving the Company Acquired Business (other than sales or licenses of assets or inventory in the Ordinary Course of Business or as permitted by this Agreement). Seller will immediately cease any and all existing activities, discussions discussions, or negotiations with any Person parties conducted heretofore with respect to any of the foregoing. Notwithstanding Seller will promptly (A) notify Purchaser if it receives any proposal or written inquiry or written request for information in connection with an Acquisition Proposal or potential Acquisition Proposal and (B) notify Purchaser of the foregoingterms and conditions of any such Acquisition Proposal including the identity of the party making an Acquisition Proposal. In addition, prior from and after the date of this Agreement, until the earlier to occur of the time Closing Date or termination of acceptance of Company Common Stock for payment this Agreement pursuant to the Offerits terms, the Company may furnish information concerning Seller will not, and Seller will cause its businesses respective Affiliates, shareholders, directors, officers, employees, investment bankers, attorneys, agents and representatives not to, directly or its Subsidiariesindirectly, properties make or assets to authorize any Person public statement, recommendation or “group” (as defined solicitation in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person support of any Acquisition Proposal made by any person, entity or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined belowother than Purchaser), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ikanos Communications), Asset Purchase Agreement (Ikanos Communications)
No Solicitation. (a) The From and after the date hereof, the Company agrees (i) that it and its subsidiaries shall not, nor shall it or its subsidiaries authorize or knowingly permit any of its Subsidiaries todirector, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director officer or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries tosubsidiaries or any investment banker, (i) solicit attorney, accountant or initiate, other advisor or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties representative of the Company or any of its Subsidiariessubsidiaries (collectively, the “Representatives”) to, directly or indirectly, solicit, initiate or encourage, or take any other action knowingly to knowingly facilitate facilitate, any Takeover Proposal (as defined below) or engage in any discussions or negotiations regarding, or provide any nonpublic information or data to make or implement, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; (ii) that it shall immediately cease and cause to be terminated any existing discussions or negotiations with any third persons conducted heretofore with a view to formulating a Takeover Proposal; and (iii) that it shall immediately notify Parent of the making receipt of any proposal Takeover Proposal and that constitutesit shall keep Parent informed of the status of such Takeover Proposal; provided, or may however, that, at any time prior to obtaining the Stockholder Approval, the Company may, in response to a bona fide Takeover Proposal that the Board of Directors of the Company determines in good faith could reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below) and which Takeover Proposal did not result from a breach of this Section 4.02, (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement (except that such confidentiality agreement shall not prohibit such person from making an unsolicited Takeover Proposal), provided that all such Person information is provided on a prior or group shall have entered into a confidentiality agreementsubstantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the confidentiality provisions of which shall be no more favorable to person making such third party than those provided for in the Confidentiality Agreement Takeover Proposal (provided that and its representatives) regarding such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Takeover Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (American Water Works Company, Inc.), Merger Agreement
No Solicitation. (a) The Company shall will not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its reasonable best efforts not to permit) any affiliateensure that its officers, officerdirectors, director or employee ofemployees, or any investment bankerbankers, attorney or attorneys, accountants and other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourageagents do not, directly or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate the making of, any inquiries relating to, offer or the submission of, proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal, or (iii) in the event of an unsolicited Acquisition Proposal for the Company engage in negotiations or approve discussions with, or resolve provide any information or data to, any Person (other 55 than Parent, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company in its SEC Reports) relating to approve any Acquisition Proposal; provided, however, that nothing -------- ------- contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board Company Board of directors Directors from (xi) taking and disclosing to the Company’s 's stockholders a its 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, Act or (yii) making such disclosure to the Company’s 's stockholders asas the Board of Directors determines in good faith, in the good faith judgment of only after receiving advice from outside legal counsel to the Company’s board of directors, pursuant that the failure to advice from independent legal counsel, make such disclosure is reasonably expected likely to be required cause the Company Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. .
(b) Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment Shares pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiariesbusiness, properties or assets to any Person or “group” (as defined pursuant to appropriate confidentiality agreements with "standstill" provisions no less favorable to the Company than those contained in the Exchange Act Confidentiality Agreement, dated November 14, 1997 entered into between Fremont Partners, an affiliate of Parent, and the rules promulgated thereunderPurchaser and the Company (the "Confidentiality Agreement") and may negotiate ------------------------- and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior an Acquisition Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
if (x) such Person entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Company Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) the Company Board of Directors determines in good faith, only after receiving advice from outside legal counsel to the Company, that the failure to provide such information or access or to engage in such discussions or negotiations is reasonably likely to cause the Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable law (an Acquisition Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The ----------------- Company shall promptly, and in any event within two business days following receipt of a Superior Proposal;, notify Parent of the receipt of the same and prior to providing any such party with any material non-public information. The Company shall promptly provide to Parent any material non- public information regarding the Company provided to any other party which was not previously provided to Parent.
(c) Except as set forth herein, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares in the Offer, the Board of Directors of the Company may (subject to the terms of this and the following sentence) terminate this Agreement in accordance with Section 8.1(f) and enter into an agreement with respect to a Superior Proposal; provided, however, that -------- ------- the Company shall not enter into an agreement with respect to a Superior Proposal unless the Company shall have furnished Parent with written notice not later than 12:00 noon two business days in advance of any date that it intends to enter into such agreement. In addition, if the Company proposes to enter into an agreement with respect to any Acquisition Proposal, it shall concurrently with entering into such agreement pay, or cause to be paid, to Parent the Termination Fee (as defined in Section 8.2(b)), plus any amounts payable at said time for reimbursement of expenses pursuant to the provisions of Section 8.2(b).
Appears in 2 contracts
Sources: Merger Agreement (Saffron Acquisition Corp), Merger Agreement (Sun Coast Industries Inc /De/)
No Solicitation. (a) The Company shall Subject to the provisions of this Section 5.22, Keystone will not, nor shall it permit any of and will cause its Subsidiaries not to, nor shall it authorize (and shall use will cause Keystone’s and its best efforts Subsidiaries’ respective officers, directors, employees, Affiliates, agents and representatives not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, (i) initiate or solicit or knowingly encourage any inquiries relating with respect to, or the submission making of, any Acquisition Proposal, (ii) participate except as permitted below, (A) engage in negotiations or discussions with or provide any discussions information or negotiations regarding data to, any Person relating to an Acquisition Proposal, (B) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, or in connection with any Acquisition Proposal, (C) execute or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any letter of intent, agreement with respect in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided(other than a confidentiality agreement contemplated by Section 5.22(b)). Keystone shall, that nothing contained in this Section 5.3 or any other provision hereof and shall prohibit the Company or the Company’s board cause each of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actits officers, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counselemployees, is reasonably expected to be required under applicable lawAffiliates, provided that Company may notagents and representatives to, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will (i) immediately cease any existing activitiessolicitations, discussions or negotiations with any Person (other than TCBX) conducted heretofore with respect to any Acquisition Proposal and promptly request return or destruction of confidential information related thereto, (ii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its officers, directors, employees, Affiliates, agents and representatives is a party and (iii) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the approval of the foregoing. Notwithstanding Keystone shareholders, in the foregoingevent that Keystone receives a bona fide Acquisition Proposal that is not received in violation of this Section 5.22, Keystone and its Board may participate in discussions or negotiations with, or furnish any information to, any Person making such Acquisition Proposal and its agents and representatives or potential sources of financing that need to be involved in such discussion if Keystone’s Board determines in good faith, after consultation with its counsel and financial advisor, that such Person is reasonably likely to submit to Keystone a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the board of directors’ fiduciary duties; provided, however, that, prior to the time of acceptance of Company Common Stock for payment pursuant providing any nonpublic information to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous participating in discussions or negotiations with the Company concerning a Superior Proposal (as defined below)such Person, provided that such Person or group Keystone shall have entered into a confidentiality agreement, agreement with such Person on terms that are substantially similar to the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement and that any nonpublic information concerning Keystone and its Subsidiaries provided to such Person, to the extent not previously provided to TCBX, is promptly provided to TCBX. In addition, nothing herein shall restrict Keystone from complying with its disclosure obligations with regard to any Acquisition Proposal under applicable Law.
(c) Keystone will promptly (and in any event within 48 hours) notify TCBX of the receipt by Keystone of any Acquisition Proposal, which notice shall include the material terms of and identity of the Person(s) making such Acquisition Proposal. Keystone will (subject to the Keystone Board’s fiduciary duties) keep TCBX reasonably informed of the status and material terms and conditions of any such Acquisition Proposal and of any material amendments or proposed material amendments thereto.
(d) Keystone’s Board may, at any time prior to obtaining the approval of the Keystone shareholders, (i) approve, endorse or recommend a Superior Proposal or enter into a definitive agreement with respect to a Superior Proposal or (ii) modify or amend in a manner adverse to TCBX or withdraw the Keystone Recommendation ((i) or (ii) above being referred to as a “Change in Recommendation”), provided that (x) prior to such confidentiality Change in Recommendation, Keystone’s Board shall determine, in good faith (after consultation with its counsel), that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (y) such Change in Recommendation is in connection with a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account any action taken by TCBX pursuant to Section 5.22(e).
(e) Notwithstanding anything to the contrary contained in this Agreement, Keystone may not terminate this Agreement to enter into a definitive agreement must permit with respect to a Superior Proposal unless (i) it notifies TCBX in writing of its intention to take such action at least three (3) Business Days prior to taking such action, specifying the Company to disclose to Parent material terms of any applicable Superior Proposal, identifying the Person(s) making such Superior Proposal and providing TCBX an unredacted copy of all of the information required agreements with the party making such Superior Proposal, (ii) TCBX does not make, after being provided with reasonable opportunity to be disclosed by negotiate with Keystone and its agents and representatives, within such three (3) Business Day period, irrevocable adjustments in the Company terms and conditions of this Agreement that Keystone’s Board determines, in good faith after consultation with its counsel and financial advisors, is at least as favorable to Parent by Keystone’s shareholders as such Superior Proposal and (iii) Keystone is not in material breach of this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;5.22.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Third Coast Bancshares, Inc.), Agreement and Plan of Reorganization (Third Coast Bancshares, Inc.)
No Solicitation. (a) The Company shall not, nor shall it permit directly or indirectly, through any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director director, employee, representative or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) agent of the Company or any of its Subsidiaries tosubsidiaries, (i) solicit solicit, initiate or initiate, or encourage, directly or indirectly, encourage the initiation of any inquiries relating toor proposals regarding any merger, sale of substantial assets, sale of shares of capital stock (including without limitation by way of a tender offer) or similar transactions involving the submission of, Company or any Acquisition Proposalsubsidiaries of the Company other than the Merger (any of the foregoing inquiries or proposals being referred to herein as an "ACQUISITION PROPOSAL"), (ii) participate engage in any negotiations or discussions or negotiations regarding any Acquisition Proposalconcerning, or in connection with provide any Acquisition Proposal, or furnish nonpublic information to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead person relating to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or agree to, approve or resolve to approve recommend any Acquisition Proposal; provided, that nothing . Nothing contained in this Section 5.3 4.2(a) shall prevent the Board of Directors of the Company from considering, negotiating, approving and recommending to the stockholders of the Company a bona fide Acquisition Proposal not solicited in violation of this Agreement, provided the Board of Directors of the Company concludes in good faith that the Acquisition Proposal would constitute a Superior Proposal (as defined below) and determines in good faith (upon advice of outside counsel) that it is required to do so in order to discharge properly its fiduciary duties.
(b) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, or any other provision hereof shall prohibit modification of or amendment to any Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing, and shall identify the person or entity making the Acquisition Proposal and set forth the material terms and condition of the Acquisition Payment. The notice shall also indicate whether the Company is providing or intends to provide the person making the Acquisition Proposal with access to information concerning the Company as provided in Section 4.2(c).
(c) If the Board of Directors of the Company receives a request for material nonpublic information by a person who makes, or indicates that it is considering making, a bona fide Acquisition Proposal, and the Board of Directors determines in good faith and upon the advice of independent counsel that it is required to cause the Company to act as provided in this Section 4.2(c) in order to discharge properly the directors' fiduciary duties, then, provided the person making the Acquisition Proposal has executed a confidentiality agreement substantially similar to the one then in effect between the Company and Parent, the Company may provide such person with access to information regarding the Company’s board .
(d) The Company shall ensure that the officers and directors of directors from the Company and its subsidiaries and any investment banker or other advisor or representative retained by the Company are aware of the restrictions described in this Section 4.2.
(xe) taking and disclosing For purposes of this Agreement, "Superior Proposal" means a bona fide Acquisition Proposal that the Board of Directors of the Company determines in its good faith judgment to be more favorable to the Company’s 's stockholders a position than the Merger (based on the written opinion, with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under only customary qualifications, of the Exchange Act, or (y) making Company's independent financial advisor that the value of the consideration of the Company's stockholders provided for in such disclosure proposal exceeds the value of the consideration to the Company’s 's stockholders asprovided for in 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 (based on the written advice of the Company’s board of directors, pursuant to advice from 's independent legal counselfinancial advisor), is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution capable of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed being obtained by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;person making the proposal.
Appears in 2 contracts
Sources: Merger Agreement (Summit Technology Inc), Merger Agreement (Autonomous Technologies Corp)
No Solicitation. (a) The Subject to the remainder of this Section 5.02, from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VII, the Company shall not, nor not and shall it not cause or permit any of its Subsidiaries to, nor shall it authorize (and shall use not authorize or permit its best efforts not Representatives or its Subsidiaries’ Representatives to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit solicit, initiate or initiate, or encourage, directly or indirectly, any inquiries relating to, or knowingly encourage the submission ofof any Acquisition Proposal (as defined below), (ii) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement with respect to any Acquisition Proposal, (iiiii) participate solicit, knowingly encourage, participate, engage in or assist in any manner any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person (other than Parent or its Representatives) any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or knowingly take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iiiiv) enter into take any agreement action (A) other than as contemplated by this Agreement in connection with respect the Merger, to render the Company Rights issued pursuant to the terms of the Company Rights Agreement inapplicable to any Acquisition Proposal or the transactions contemplated thereby, to exempt or exclude any person (other than Parent or Merger Sub) from the definition of an Acquiring Person (as defined in the Company Rights Agreement) under the terms of the Company Rights Agreement or allow the Company Rights to expire prior to their expiration date (all such actions in this subclause (A) are collectively referred to as “Company Rights Agreement Modifications”) or (B) exempt any person (other than Parent or Merger Sub) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provision) or otherwise cause or permit such restrictions not to apply (all such actions in this subclause (B) are collectively referred to as “DGCL 203 Modifications”).
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Stockholder Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement and not the result of a breach of this Section 5.02, if the Company Board determines in good faith after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal (as defined in subsection (h) below), the Company may (x) enter into a customary confidentiality agreement with the person making such Acquisition Proposal containing terms and provisions (i) substantially similar to the terms and provisions of, (ii) no less restrictive on the person making such Acquisition Proposal and (iii) no less favorable to the Company than, the Confidentiality Agreement (it being understood that such confidentiality agreement will not include any provision calling for an exclusive right to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Section 5.02), (y) furnish, and authorize and permit its Representatives to furnish, information with respect to the Company and its Subsidiaries to the person making such Acquisition Proposal and its Representatives pursuant to such customary confidentiality agreement and (z) participate in discussions or negotiations with such person and its Representatives regarding any such Acquisition Proposal.
(c) The Company shall notify Parent (“Notice of Proposal”) as promptly as practicable (and in any event within 24 hours) after receipt by the Company or any of its Subsidiaries, or any of their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations in connection with any Acquisition Proposal, specifying the material terms and conditions thereof and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of this Agreement, the identity of the party making such inquiry, proposal, offer or request (and, in the case of an entity, the ultimate beneficial owner thereof, if known to the Company). The Company shall keep Parent reasonably informed, on a prompt basis, of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals, offers or requests, and shall promptly (and in any event within 24 hours) provide to Parent a copy of all written (and a summary in reasonable detail of all oral) inquiries, proposals or offers, requests for information or requests for discussions or negotiations from any other person and all written due diligence materials or other information provided by or on behalf of the Company or any Subsidiary of the Company in connection therewith that was not previously provided to Parent.
(d) The Company Board shall not (i) withdraw, amend or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub, or publicly propose or announce an intent to, or resolve to, do any of the foregoing (any such action, an “Adverse Recommendation Change”), (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, or (iii) cause or permit the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to, or may reasonably be expected to lead to, any Acquisition Proposal, other than any confidentiality agreement permitted by Section 5.02(b).
(e) Notwithstanding the foregoing, if the Company has otherwise complied with its obligations under this Section 5.02, then at any time prior to the time when the Company Stockholder Approval has been obtained:
(i) upon having received an unsolicited bona fide written Acquisition Proposal that is not subsequently withdrawn and the Company Board concluding in good faith (A) after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with its outside legal counsel that taking such action is necessary to comply with its fiduciary duties to the Company Stockholders under applicable Law, the Company Board may make an Adverse Recommendation Change or publicly propose to make an Adverse Recommendation Change, or approve or resolve recommend the Superior Proposal, or terminate this Agreement pursuant to approve any Acquisition Section 7.01(c), or make Company Rights Agreement Modifications or DGCL 203 Modifications with respect to the acquisition of Company Common Stock pursuant to such Superior Proposal; provided, however, that nothing the Company Board shall not make an Adverse Recommendation Change, approve or recommend the Superior Proposal or terminate this Agreement pursuant to Section 7.01(c) or make such Company Rights Agreement Modifications or DGCL 203 Modifications, unless the Company has first (x) provided notice (“Notice of Superior Proposal”) to Parent that an Acquisition Proposal described in a Notice of Proposal previously furnished to Parent constitutes a Superior Proposal, (y) given Parent three (3) Business Days following Parent’s receipt of the Notice of Superior Proposal to propose revisions to the terms of this Agreement (or make another proposal) and (z) shall have negotiated during such three Business Day period in good faith with Parent with respect to such proposed revisions or other proposal, if any, and at the end of such period the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, that such Acquisition Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by Parent (it being understood and agreed that any amendment to any material term of such Acquisition Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period under clause (y).
(ii) In circumstances other than as provided in Section 5.02(e)(i) above, the Company Board may, if it determines in good faith, after consulting with outside legal counsel, that taking such action is necessary to comply with its fiduciary obligations under applicable Law, make an Adverse Recommendation Change, or publicly propose to make an Adverse Recommendation Change, but only after the Company has provided Parent with forty-eight (48) hours prior written notice that the Company Board is prepared to make the determination set forth in this clause (ii).
(f) Nothing contained in this Section 5.3 or any other provision hereof 5.02 shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders Company Stockholders a position with respect to a tender contemplated by Rule 14d-9 or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange Act, Act or (y) from making such any required disclosure to the Company’s stockholders asCompany Stockholders if, in the good faith judgment of the Company’s board of directorsCompany Board, pursuant to advice from independent after consultation with outside legal counsel, is reasonably expected failure so to disclose would be required inconsistent with its fiduciary obligations under applicable lawLaw, provided it being understood, however, that this Section 5.02(f) shall not be deemed to permit the Company may notBoard to make an Adverse Recommendation Change or take any of the actions referred to in clause (iv) of Section 5.02(a) except, except as in each case to the extent permitted by Section 5.3(b5.02(e), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution .
(g) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person or group (as such term is defined under Section 13(d) of the Exchange Act) (other than Parent or Merger Sub) relating to (i) any direct or indirect acquisition or purchase of more than 15% of the outstanding shares of Company Common Stock; (ii) any tender offer or exchange offer that, if consummated, would result in any person or group beneficially owning more than 15% of the outstanding shares of Company Common Stock; (iii) the direct or indirect acquisition of assets of the Company will immediately cease any existing activities, discussions that generate or negotiations with any Person conducted heretofore with respect to any constitute 15% or more of the foregoing. Notwithstanding net revenues, net income or the foregoingassets (based on the fair market value thereof) of the Company; (iv) a merger, prior consolidation, business combination, recapitalization, restructuring, liquidation, dissolution or other similar transaction involving the Company or any Significant Subsidiary (as defined in Rule 1-02(w) of Regulation S-X) of the Company; and (v) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or any Subsidiary of the Company (including for this purpose the outstanding equity securities of the Subsidiaries of the Company) for consideration equal to 15% or more of the time aggregate fair market value of acceptance all of the shares of Company Common Stock for payment pursuant outstanding on the date prior to the Offerdate hereof, but in each case other than the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent transactions contemplated by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Image Entertainment Inc), Merger Agreement (BTP Acquisition Company, LLC)
No Solicitation. (a) The Company shall and its Subsidiaries will not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall the Company will direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, take any inquiries relating toaction to solicit, initiate, or knowingly encourage or facilitate the submission ofmaking of any Acquisition Proposal (including without limitation by amending, or granting any waiver under, Article NINTH of the Company Charter or Section 203 of the DGCL) or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto (except to notify such Person of the existence of the provisions of this Section 7.8), or disclose any nonpublic information or afford access to properties, books or records to any Person that has made, or to the Company’s knowledge is considering making, any Acquisition Proposal, (ii) participate or approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in any discussions principle, merger agreement, option agreement, acquisition agreement or negotiations regarding any other similar agreement relating to an Acquisition Proposal, or in connection with propose publicly or agree to do any of the foregoing relating to an Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to . Nothing contained in this Agreement shall prevent the properties Board of Directors of the Company or any of its Subsidiaries, or take any other action from (i) complying with Rule 14e-2 under the Exchange Act with regard to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (yii) making such any disclosure to if, in the Company’s stockholders ascase of this clause (ii), in the good faith judgment of the Company’s board Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided, pursuant however, that any such disclosure that relates to an Acquisition Proposal shall be deemed to be a Change in the Company Recommendation unless the Company’s Board of Directors reaffirms the Company Recommendation in such disclosure. Notwithstanding anything to the contrary in this Agreement but subject to the first sentence of Section 7.8(b), prior to (but not after) the date of the Company Stockholder Approval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information and access, but only in response to a request for information or access, to any Person making a bona fide, written Acquisition Proposal to the Board of Directors of the Company after the date hereof which was not obtained in breach of Section 5.2 or this Section 7.8 and (B) participate in discussions and negotiate with such Person or its representatives concerning any such unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A) or (B) of this sentence, (1) the Board of Directors of the Company concludes in good faith, after (x) receipt of the advice from independent of a financial advisor of nationally recognized reputation and outside legal counsel, is that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal and (y) taking into account any revisions to the terms of the Combination or this Agreement proposed by Parent after being notified pursuant to Section 5.2(b), that failure to do so would be required reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, law and (2) (x) the Company receives from the Person making such an Acquisition Proposal, prior to engaging in any of the activities described in clause (A) or (B) of this sentence, an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (i) no less favorable to the Company and (ii) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement and (y) any information provided to such Person has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Person. The Board Recommendation of Directors of the Company shall not take any of the actions referred to in the foregoing clauses (A) and (B) unless the Company shall have first delivered to Parent written notice advising Parent that the Company intends to take such action.
(b) In the event that on or approve or recommend, or propose to approve or recommend any after the date of this Agreement the Company receives an Acquisition Proposal, or enter into any agreement request for nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or to the Company’s knowledge may be considering making, an Acquisition Proposal, the Company will (A) promptly (and in no event later than twenty-four (24) hours after receipt thereof) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal or request and set forth the material terms thereof) Parent thereof, (B) keep Parent reasonably and promptly informed of the status and material terms of (including with respect to changes to the status or material terms of) any such Acquisition Proposal or request and (C) as promptly as practicable (but in no event later than twenty-four (24) hours after receipt) provide to Parent unredacted copies of all material correspondence and written materials (whether or not electronic) sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions thereof, including any proposed transaction agreements (along with all schedules and exhibits thereto and any financing commitments related thereto), as well as written summaries of any material oral communications relating to the terms and conditions thereof. The Company (x) shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any Persons with respect to any Acquisition Proposal. Upon execution of this AgreementProposal or the possibility thereof, (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, nine (9) months prior to the time date hereof in connection with its consideration of acceptance any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (z) immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company Common Stock for payment pursuant or any of its Subsidiaries. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any such Acquisition Proposal and shall enforce the provisions of any such agreement; provided that the Company shall be permitted on a confidential basis, upon written request by a relevant party thereto or without prior notice to Parent disclosing the party and the circumstances, release or waive any standstill obligations solely to the Offer, extent necessary to permit the party referred therein to submit an Acquisition Proposal to the Board of Directors of the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the on a confidential basis. The Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose provide written notice to Parent all of waiver or release of any standstill by the Company, including disclosure of the information required to be disclosed by identities of the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;parties thereto and circumstances relating thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Anadarko Petroleum Corp), Merger Agreement (Chevron Corp)
No Solicitation. (a) The Subject to Section 5.2(b), from the date hereof until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time, the Company and its Affiliates shall not, nor shall it they authorize or knowingly permit any of its Subsidiaries their respective Representatives to, nor shall it authorize directly or indirectly, (and shall use its best efforts not to permiti) any affiliatesolicit, officerinitiate or induce the making, director submission or employee announcement of, or knowingly encourage, facilitate or assist, an Acquisition Proposal, (ii) furnish to any investment banker, attorney Person (other than Acquisition or other advisor or representative (collectively, “Representatives”any designees of Acquisition) of any non-public information relating to the Company or any of its Subsidiaries to, (i) solicit or initiateSubsidiaries, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish afford to any Person (other than Acquisition or any information designees of Acquisition or data with respect to or provide Acquisition) access to the properties business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or take announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any other action to knowingly facilitate inquiries or the making of any proposal that constitutes, or may would reasonably be expected to lead toto an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, or (iiiv) enter into any agreement with respect Contract contemplating or otherwise relating to any an Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit Transaction. Promptly following the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution date of this Agreement, the Company will immediately and its Affiliate shall instruct their Representatives that are engaged in ongoing discussions and negotiations with any Persons (other than Acquisition or any of its Representatives) with respect to any possible Acquisition Proposal to cease any existing activitiessuch discussions.
(b) Notwithstanding anything to the contrary set forth in Section 5.2(a), the Company Board (acting through the Special Committee), may, directly or indirectly through the Company’s Representatives, (i) contact any Person that has made a bona fide, written Acquisition Proposal to clarify and understand the terms and conditions thereof in order to assess whether such Acquisition Proposal is reasonably expected to lead to a Superior Proposal, (ii) participate or engage in discussions or negotiations with any Person conducted heretofore that has made a bona fide, written Acquisition Proposal and that the Company Board (acting through the Special Committee) determines in good faith, after consultation with respect its financial advisor and outside legal counsel, either constitutes or is reasonably expected to lead to a Superior Proposal, and/or (iii) furnish to any Person that has made a bona fide, written Acquisition Proposal that the Company Board (acting through the Special Committee) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or is reasonably expected to lead to a Superior Proposal any non-public information relating to the Company or any of its Subsidiaries, and/or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the foregoing. Notwithstanding Company or any of its Subsidiaries, in each case under this clause (iii) pursuant to a confidentiality agreement; provided that in the foregoing, prior to the time case of acceptance of Company Common Stock for payment any action taken pursuant to the Offerpreceding clauses (ii) or (iii), the Company may Board (acting through the Special Committee) determines in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, provided further that the Company shall (I) provide written notice to Acquisition of its intent to furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in enter into discussions and negotiations with such Person or group whether or not at least one Business Day prior to taking any such Person or group has had previous discussions or negotiations with the Company concerning action, (II) promptly following its execution, deliver to Acquisition a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, copy of the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed executed by the Company and such Person, and (III) promptly make available to Parent by this Section 5.3) if:
(x) Acquisition any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Acquisition or group has submitted a Superior Proposal;its Representatives.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (China Yida Holding, Co.), Merger Agreement (China Yida Holding, Co.)
No Solicitation. (a) The 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 shall not, nor and shall it permit any of cause its Subsidiaries and their respective affiliates not to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of cause the Company or any of its Subsidiaries Representatives not to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any Acquisition Proposal, encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any including by way of furnishing information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesassistance), or take any other action to knowingly facilitate facilitate, any inquiry in connection with or the making of any proposal from any Person that constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal (as defined in Section 5.08(f)), (ii) enter into, explore, maintain, participate in or continue any discussion or negotiation with any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) regarding an Acquisition Proposal, or furnish to any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) any non-public information or otherwise assist or participate in, facilitate or encourage, any effort or attempt by any other Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. 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, until the date of the approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, the Company Board, based upon the recommendation of the Special Committee, shall not be prohibited by this Section 5.08 from 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 5.08) if (A) the Company Board, based upon the recommendation of the Special Committee, 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 to the Company’s shareholders under applicable Law, (B) the Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal (as defined in Section 5.08(g)) and (C) prior to furnishing such information to, or engaging in discussions or negotiations regarding an Acquisition Proposal or the Transactions 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 Confidentiality Agreement.
(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 engage in discussions or negotiations with, any Person on the terms contemplated in Section 5.08(a), the Company Board may, prior to the approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, 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, (B) the Company has complied with Section 5.08(c), (C) the Company Board, based upon the recommendation of the Special Committee, 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 to the Company’s shareholders under applicable Law, and (D) the Company has complied with Section 5.02(a) and the Shareholder Approval has not been obtained by reason of the failure to obtain the required vote at the Shareholders Meeting.
(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 by which any Person (other than Parent or Acquisition Corp.) expresses an interest or intention to make 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 fully 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 5.08(a), the Company Board shall promptly (but in any event within two Business Days) 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. At least four Business Days (the “Four Day Period”) prior to taking any of the actions referred to in Section 5.08(b), the Company Board shall notify Parent of any such action it proposes to take and during the Four Day Period, the Company Board or the Special Committee, as applicable, shall negotiate in good faith with Parent with respect to any Acquisition revised proposal to acquire the Common Shares that Parent may make prior to or during the Four Day Period. If, during the Four Day Period, the Parent makes a proposal that either the Company Board or the Special Committee determines in good faith, after consultation with a financial advisor of nationally recognized reputation, is at least as favorable to the shareholders of the Company as the applicable Superior Proposal or approve obviates the need for a change in the Company Board’s favorable recommendation, as the case may be, then the Company Board shall not take any of the actions referred to in Section 5.08(b) or resolve to approve any Acquisition Proposal; providedwithdraw, that nothing modify or reverse its approval or recommendation of this Agreement and the Merger.
(d) Nothing contained in this Section 5.3 or any other provision hereof Agreement shall prohibit prevent the Company or the Company’s board of directors Board from (x) taking taking, and disclosing to the Company’s stockholders Company shareholders, a position with respect to a tender contemplated by Rule 14d-9 or exchange offer by a third party pursuant to Rules 14d-9 and Rule 14e-2 promulgated under the Exchange ActAct with regard to any tender offer; provided, or (y) making such disclosure to the Company’s stockholders ashowever, in the good faith judgment that none of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that the Company may notBoard or the Special Committee shall, except as permitted by Section 5.3(b5.08(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal. Without limiting the foregoing, it is understood and agreed that any violation of the restrictions set forth in the preceding sentence by any Company Representative, whether or enter into not acting on behalf of the Company or any agreement with respect of its Subsidiaries or any of their affiliates, shall be deemed to any Acquisition Proposal. Upon execution be a breach of this Agreement, Section 5.08 by the Company.
(e) The Company and each of its Subsidiaries shall immediately cease and cause its affiliates and the Company will immediately Representatives to cease any and all existing activities, discussions or negotiations with any Person parties (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) conducted heretofore with respect to any Acquisition Proposal, and shall use its commercially reasonable efforts to cause any such parties in possession of confidential or proprietary information about the Company that was furnished by or on behalf of the Company 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 5% or more of the total consolidated assets of the Company or any of its Subsidiaries, in a single transaction or series of transactions, (ii) any direct or indirect acquisition or purchase of 5% or more of any class of equity securities of the Company or any of its Subsidiaries, in a single transaction or series of transactions (including through a merger, consolidation, share exchange, business combination or other similar transaction), (iii) any tender offer or exchange offer (including a self-tender offer) that if consummated would result in any person beneficially owning 5% or more of any class of equity securities of the Company or any of its Subsidiaries, (iv) any merger, consolidation, share exchange, business combination, reorganization, recapitalization, reclassification, liquidation or dissolution or other similar transaction involving the Company or any of its Subsidiaries or (v) any public announcement of an agreement, proposal, plan or intention to do any of the foregoing. Notwithstanding , other than the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent transactions contemplated by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (National Home Health Care Corp), Merger Agreement (National Home Health Care Corp)
No Solicitation. (a) The Company shall agrees that it will not, nor shall it permit any of and will cause its Subsidiaries and its Subsidiaries’ officers, directors, agents, advisors and affiliates not to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, solicit, encourage or encourage, directly knowingly facilitate inquiries or indirectly, any inquiries relating proposals with respect to, or the submission ofengage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal; provided that, (ii) in the event Company receives an unsolicited bona fide Acquisition Proposal and the Board of Directors of Company concludes in good faith that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, Company may, and may permit its Subsidiaries and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Board of Directors of Company concludes in good faith (and based on the advice of outside counsel) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso or engaging in any negotiations, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to Company than the Confidentiality Agreement of December 9, 2010. Company will immediately cease and cause to be terminated any activities, discussions or negotiations regarding any Acquisition Proposal, or in connection conducted before the date of this Agreement with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any persons other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement than Purchaser with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality or approve similar agreement relating to an Acquisition Proposal and (y) within ten business days after the date hereof, request and confirm the return or resolve destruction of any confidential information provided to approve any person (other than Purchaser and its affiliates) pursuant to any such confidentiality or similar agreement. Company will promptly (and in any event within 24 hours) advise Purchaser following receipt of any Acquisition Proposal and the substance thereof (including the identity of the person making such Acquisition Proposal), and will keep Purchaser promptly apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis.
(b) Nothing contained in this Agreement shall prevent Company or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person Rules will in no way eliminate or group shall have entered into a confidentiality agreement, modify the confidentiality provisions of which shall be no more favorable effect that any action pursuant to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by Rules would otherwise have under this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Marshall & Ilsley Corp), Merger Agreement (Bank of Montreal /Can/)
No Solicitation. (a) The Each of Parent and the Company shall and their respective Subsidiaries will not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall will use its their reasonable best efforts to cause their respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, take any inquiries relating toaction to solicit, initiate, encourage or facilitate the making of any Acquisition Proposal (including without limitation, in the case of the Company, by amending, or granting any waiver under, the submission of, Company Rights Agreement) or any Acquisition Proposal, (ii) participate inquiry with respect thereto or engage in any substantive discussions or negotiations regarding with any Acquisition ProposalPerson with respect thereto, or in connection with any Acquisition Proposal or potential Acquisition Proposal, disclose any nonpublic information relating to it or furnish to any Person any information its Subsidiaries or data with respect to or provide afford access to the properties properties, books or records of the Company it or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead Subsidiaries to, any Acquisition Proposal Person that has made, or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve such party's knowledge, is considering making, any Acquisition Proposal; provided, however, that, in the event that nothing contained in (x) Parent or the Company shall receive a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Section 5.3 7.10, (y) prior to receipt of the Parent Stockholder Approval (in the case of Parent) or any other provision hereof shall prohibit the Company Stockholder Approval (in the case of the Company), the Board of Directors of either Parent or the Company’s board , as applicable, determines in its good faith judgment, after receiving the advice of directors from (x) taking and disclosing to outside counsel that, in light of this Superior Proposal, if Parent or the Company’s stockholders a position with respect , as applicable, fails to a tender participate in such discussions or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actnegotiations with, or (y) provide such information to, the party making the Superior Proposal, there is a reasonable possibility that such disclosure to the Company’s stockholders as, Board of Directors would be in the good faith judgment violation of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required its fiduciary duties under applicable law, and (z) after giving the other party two business days' notice of its intention to do so, the party receiving such Superior Proposal may (i) furnish information with respect to it and its subsidiaries to the Person making such Superior Proposal pursuant to a customary confidentiality agreement containing terms generally no less restrictive than the terms contained in the Confidentiality Agreement (but not containing any exclusivity provision and permitting the Person to submit to the Board of Directors of the Company or Parent, as applicable, Acquisition Proposals with respect to the Company or Parent, as applicable, provided that any such Acquisition Proposal is subject to the approval of the Board of Directors of the Company or Parent, as applicable, (which approval may not, except as permitted by Section 5.3(bbe granted solely in accordance with the terms of Sections 5.1(m) or 6.1(m) hereof)), withdraw provided that a copy of all such written information is simultaneously provided to the other party hereto and (ii) participate in discussions and negotiations regarding such Superior Proposal.
(b) Nothing contained in this Agreement shall prevent the Board of Directors of Parent or modifythe Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of that party shall not recommend that the stockholders of that party tender their shares in connection with a tender offer except to the extent, or propose to withdraw or modifyafter receiving a Superior Proposal, the Company Board Recommendation or approve or recommendof Directors of that party determines in its good faith judgment, or propose after receiving the advice of outside legal counsel, that, in light of the Superior Proposal, there is a reasonable possibility that the Board of Directors would be in violation of its fiduciary duties under applicable law if it fails to approve or recommend make such a recommendation.
(c) Any party receiving an Acquisition Proposal will (A) promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making the Acquisition Proposal and set forth the material terms thereof) the other party to this Agreement after receipt of any Acquisition Proposal, or enter into any agreement request for nonpublic information relating to such party or any Subsidiary of such party or for access to the properties, books or records of such party or any Subsidiary of such party by any Person that has made, or to such party's knowledge may be considering making, an Acquisition Proposal, and (B) will keep the other party to this Agreement reasonably informed of any changes to the material terms of any such Acquisition Proposal or request. Each of Parent and the Company shall, and shall cause their respective Subsidiaries to, immediately cease and cause to be terminated, and use reasonable best efforts to cause its officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any Persons with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Honeywell Inc), Merger Agreement (Alliedsignal Inc)
No Solicitation. (a) The From the date hereof until the termination of this Agreement, the Company shall not, nor shall it permit any of and its Subsidiaries toshall not (whether directly or indirectly through advisors, nor shall it authorize (agents or other intermediaries), and the Company shall use its best reasonable efforts not to permit) any affiliateensure that the respective officers, officerdirectors, director or employee ofemployees, or any investment bankeradvisors, attorney representatives or other advisor or representative (collectively, “Representatives”) agents of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encouragewill not, directly or indirectly, any inquiries relating to(a) solicit, or the submission ofinitiate, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, encourage or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead tofacilitate, any Acquisition Proposal or (iiib) enter into engage or participate in negotiations or substantive discussions with, or disclose any agreement with respect non-public information relating to the Company or its Subsidiaries or afford access to the properties, books or records of the Company or its Subsidiaries to, any Acquisition Proposal Person that has made, or approve has indicated its interest in making or resolve considering or intending to approve any make, an Acquisition Proposal; provided, that, to the extent the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to engage or participate in such negotiations or discussions or provide such information or afford such access would be reasonably likely to be inconsistent with the fiduciary duties of the Board of Directors of the Company under applicable law, the Company may furnish information and afford access to any such Person with respect to the Company and its Subsidiaries and participate in negotiations and enter into agreements with any such Person regarding such Acquisition Proposal; provided, if the Board of Directors of the Company receives an Acquisition Proposal, then, subject to the fiduciary duties of the Board of Directors of the Company, the Company shall promptly inform Parent of the terms and conditions of such proposal and the identity of the Person making it. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any other Person that have been conducted heretofore with respect to a potential Acquisition Proposal. Furthermore, nothing contained in this Section 5.3 or any other provision hereof 5.11 shall prohibit the Company or the Company’s board Board of directors Directors of the Company from (x) taking and disclosing to the Company’s 's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 14e-2(a) promulgated under the Exchange Act, Act or (y) from making such disclosure to the Company’s 's stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to as may be required under by applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Clear Channel Communications Inc), Merger Agreement (Universal Outdoor Holdings Inc)
No Solicitation. (a) The Following the date of this Agreement, the Company shall not, nor shall it permit immediately cease any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not discussions or negotiations with any Person or group that may be ongoing with respect to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of Acquisition Proposal relating to the Company or any of its Subsidiaries to(other than the Excluded Entities). From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, (i) solicit or initiate, or encouragethe Company shall not, directly or indirectly: (a) solicit, any inquiries relating toinitiate, encourage, facilitate or permit the making, submission of, or announcement of any Acquisition Proposal, (ii) participate in any discussions Proposal or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access Inquiry relating to the properties Company or any of its Subsidiaries (other than the Excluded Entities) or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry relating to the Company or any of its Subsidiaries, ; (b) request or take receive any other action non-public information from any Person or provide any non-public information to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Person in connection with an Acquisition Proposal or Acquisition Inquiry relating to the Company or any of its Subsidiaries (iiiother than the Excluded Entities); (c) enter into engage in discussions or negotiations with any agreement Person with respect to any Acquisition Proposal or approve or resolve Acquisition Inquiry relating to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or any of its Subsidiaries (other than the Company’s board of directors from Excluded Entities); (xd) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actapprove, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve endorse or recommend any Acquisition Proposal, Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities); or (e) enter into any agreement with respect to letter of intent or similar document or any Contract contemplating or providing for any Acquisition ProposalTransaction or any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities). Upon execution Without limiting the generality of this Agreementthe foregoing, the Company will immediately cease acknowledges and agrees that any existing activitiesaction taken by its representatives that, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, if taken by the Company may furnish information concerning its businesses or its Subsidiarieswould constitute a breach of this Section 8.2, properties or assets shall be deemed to any Person or “group” constitute a breach of this Section 8.2 by the Company (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable representative is purporting to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all act on behalf of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Company).
Appears in 2 contracts
Sources: Business Combination Agreement (Boulevard Acquisition Corp. Ii), Business Combination Agreement (Boulevard Acquisition Corp. Ii)
No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of of, the Company or any of its Subsidiaries Company Subsidiary to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, or the submission ofinitiate, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, knowingly encourage or take any other action to knowingly facilitate the making submission of any proposal that constitutesCompany Takeover Proposal, (ii) enter into any agreement, letter of intent, term sheet or may reasonably be expected other similar instrument with respect to lead to, any Acquisition Company Takeover Proposal or (iii) enter into into, continue, conduct, engage or otherwise participate in any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations regarding, furnish to any person any information with respect to, or otherwise knowingly take any action to facilitate, any proposal that could reasonably be expected to lead to a Company Takeover Proposal. The Company shall, and shall cause the Company Subsidiaries and direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person person conducted heretofore with respect to any Company Takeover Proposal and shall request the prompt return or destruction of the foregoingall confidential information previously furnished in connection therewith. Notwithstanding the foregoing, prior to the time acceptance for payment of acceptance shares of Company Common Stock for payment pursuant to the Offer, the Company may and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisor, constitutes or could reasonably be expected to lead to a Superior Company Proposal, and which Company Takeover Proposal was made after the date hereof and did not result from a breach of this Section 5.03(a), and subject to compliance with Section 5.03(c), (x) provide access or furnish information concerning its businesses or its Subsidiaries, properties or assets with respect to any Person or “group” (as defined in the Exchange Act Company and the rules promulgated thereunderCompany Subsidiaries to the person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement and (y) and may negotiate and participate in discussions and or negotiations (including solicitation of a revised Company Takeover Proposal) with such Person or group whether or not person and its Representatives regarding such Person or group has had previous discussions or negotiations Company Takeover Proposal. The Company will provide Parent and U.S. Parent with all non-public information regarding the Company concerning a Superior Proposal (as defined below), that has not previously been provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required or U.S. Parent that is provided to be disclosed by the any person making such Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Takeover Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Cgi Group Inc), Merger Agreement (Stanley, Inc.)
No Solicitation. (a) The Company shall, and shall cause the Company Subsidiaries and the respective officers, directors, employees, representatives and agents of the Company and the Company Subsidiaries to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as hereinafter defined). The Company shall not, nor shall it permit any of its the Company Subsidiaries to, nor shall it authorize (or permit any of the respective officers, directors or employees of the Company and shall use its best efforts not to permit) any affiliate, officer, director or employee of, the Company Subsidiaries or any investment banker, attorney financial advisor, attorney, accountant or other advisor representative retained by it or representative (collectively, “Representatives”) any of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any Acquisition Proposal, encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection including by way of furnishing information other than publicly available information provided pursuant to routine stockholder requests consistent with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariespast practice), or take any other action designed or reasonably likely to knowingly facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal or (iiiii) enter into participate in any agreement with respect to discussions or negotiations regarding any Acquisition Proposal or approve or resolve to approve any Acquisition Takeover Proposal; provided, however, that nothing contained in this Section 5.3 or if, at any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, time prior to the time Expiration Date and following the receipt of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined belowhereinafter defined), the Board of Directors of the Company determines in good faith, based upon the advice of outside counsel, that such action is consistent with the Board of Directors' fiduciary duties to the Company's stockholders under applicable Law, the Company may, in response to a Superior Proposal that was made in circumstances not otherwise involving a breach of this Agreement, and subject to compliance with Section 4.8(c), (x) furnish information with respect to the Company and the Company Subsidiaries to any person pursuant to a confidentiality agreement having terms substantially the same as the Confidentiality Agreement (as hereinafter defined), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that i) such confidentiality agreement must permit may not include any provision calling for an exclusive right to negotiate with the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
and (x) such Person or group has submitted a Superior Proposal;ii)
Appears in 2 contracts
Sources: Merger Agreement (Em Industries Inc), Merger Agreement (Cn Biosciences Inc)
No Solicitation. (a) The Company Except as expressly permitted by this Section 5.3, State Bancorp and its Subsidiaries shall not, nor shall it permit any of and State Bancorp and its Subsidiaries to, nor shall it authorize (and shall use its their best efforts to cause their respective representatives not to permit) any affiliateinitiate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, knowingly encourage or encourage, directly facilitate inquiries or indirectly, any inquiries relating proposals with respect to, or the submission ofengage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal; provided that in the event, prior to the time the approval of State Bancorp’s shareholders (“State Bancorp Shareholder Approval”) is obtained but not after, (ii1) participate State Bancorp receives, after the execution of this Agreement, an unsolicited bona fide Acquisition Proposal from a person other than Valley, and (2) the State Bancorp Board of Directors concludes in any discussions good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal or negotiations regarding any Acquisition Proposalwould reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties to State Bancorp’s shareholders under applicable law, State Bancorp may, and may permit its Subsidiaries and its Subsidiaries’ representatives to, furnish or in connection with any Acquisition Proposal, or furnish cause to any Person any be furnished nonpublic information or data and participate in negotiations or discussions with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any such Acquisition Proposal; provided, that nothing contained in this Section 5.3 or prior to providing any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected nonpublic information permitted to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offerforegoing proviso, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group it shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be an agreement with such third party on terms substantially similar to and no more favorable to such third party than those provided for contained in the Confidentiality Agreement between Valley and State Bancorp dated March 23, 2011 (the “Confidentiality Agreement”) and any non-public information provided that to any person given access to nonpublic information shall have previously been provided to Valley or shall be provided to Valley prior to or concurrently with the time it is provided to such confidentiality agreement must permit the Company to disclose to Parent all of the information required person. State Bancorp will (A) immediately cease and cause to be disclosed by terminated any activities, discussions or negotiations conducted before the Company date of this Agreement with any persons other than Valley with respect to Parent by this Section 5.3any Acquisition Proposal, (B) if:
not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its Affiliates or representatives is a party and (xC) such Person use its commercially reasonable efforts to enforce any confidentiality or group has submitted a Superior similar agreement relating to any Acquisition Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Valley National Bancorp), Merger Agreement (State Bancorp Inc)
No Solicitation. From and after the date of this Agreement until the Effective Time or earlier termination of this Agreement pursuant to Section 8, Mediconsult and its Subsidiaries and the officers, directors, employees, agents, representatives and advisors of Mediconsult and its Subsidiaries (acollectively, the "Representatives") The Company shall will not, nor shall it permit directly or indirectly, (i) take any action to solicit, initiate, encourage (including by way of furnishing information) or take any other action designed to facilitate or agree to any Takeover Proposal or (ii) subject to the next three sentences, engage in negotiations with, or disclose any nonpublic information relating to Mediconsult or its Subsidiaries to, nor shall it authorize (and shall use its best efforts not or afford access to permit) any affiliatethe properties, officer, director books or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) records of the Company Mediconsult or any of its Subsidiaries to, (i) solicit or initiateany person that has advised Mediconsult that it may be considering making, or encouragethat has made, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition a Takeover Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof herein shall prohibit the Company or the Company’s board Mediconsult's Board of directors Directors from (x) taking and disclosing to the Company’s its stockholders a position with respect to a an unsolicited tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Securities Exchange Act. Notwithstanding the immediately preceding sentence, or (y) making such disclosure if an unsolicited Takeover Proposal shall be received by the Board of Directors of Mediconsult, then, to the Company’s stockholders as, extent the Board of Directors of Mediconsult believes in the good faith judgment of the Company’s board of directors, pursuant to (after receiving advice from independent legal counsel, a reputable financial advisor reasonably acceptable to Andrx) that such Takeover Proposal is reasonably expected capable of being consummated and would, if consummated, be reasonably likely to result in a transaction more favorable to the Mediconsult Stockholders than the transaction contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Mediconsult determines in good faith that it could reasonably be required deemed necessary for the Board of Directors of Mediconsult to further entertain and consider the Superior Proposal in order to comply with its fiduciary duties to stockholders under applicable law, Mediconsult and its Representatives may furnish information and afford access to the properties, books or records of Mediconsult or any of its Subsidiaries to the party making such Superior Proposal and engage in negotiations with such party, and such actions shall not be considered a breach of this Section 6(j) or any other provisions of this Agreement; provided that Company in any event Mediconsult shall notify Andrx of the receipt of a Takeover Proposal and shall notify Andrx of any determination by Mediconsult's Board of Directors and Mediconsult shall deliver to Andrx a true and complete copy of the Takeover Proposal (or summary of any oral proposal) received from such third party and all documents containing or referring to non-public information of Mediconsult that are supplied to such third party. Further, Mediconsult shall provide such non-public information pursuant to a nondisclosure agreement containing customary limitations on the use and disclosure of all written and oral information furnished to such third party by or on behalf of Mediconsult (which will not contain "standstill" or similar provisions). In addition, Mediconsult shall not agree to endorse, and shall not permit any of its officers, directors, employees or other representatives to agree to or endorse, any Takeover Proposal or withdraw its recommendation of this Agreement and the Merger unless the Board of Directors of Mediconsult believes in good faith (after receiving advice from a reputable financial advisor reasonably acceptable to Andrx) that such action is required in order for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law, and Mediconsult has terminated this Agreement pursuant to Section 8(a). Mediconsult will promptly (and in any event within 24 hours) notify Andrx after receipt of any Takeover Proposal or any notice that any person is considering making a Takeover Proposal or any request for non-public information relating to Mediconsult or any of its Subsidiaries or for access to the properties, books or records of Mediconsult or any of its Subsidiaries by any person that has advised Mediconsult that it may notbe considering making, except as permitted by Section 5.3(bor that has made, a Takeover Proposal (such notice to include the identity of such person or persons), withdraw and will keep Andrx fully informed of the status and details of any such Takeover Proposal notice, request or modifyany correspondence or communications related thereto and shall provide Andrx 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 propose a complete written summary thereof, if it is not in writing. Mediconsult shall immediately cease and cause to withdraw be terminated any discussion or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend negotiations with any Acquisition Proposal, or enter into any agreement persons that may have existed with respect to any Acquisition Proposal. Upon a Takeover Proposal prior to the execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Andrx Corp /De/), Merger Agreement (Mediconsult Com Inc)
No Solicitation. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it or authorize (and shall use its best efforts not to permit) or permit any affiliatedirector, officer, director officer or employee of, of the Company or any of its Subsidiaries or any investment banker, attorney attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal or any inquiries relating toor the making of any proposal that constitutes or could reasonably be expected to lead to a Takeover Proposal, or the submission of, any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information with respect to, or data otherwise cooperate in any way with, any Takeover Proposal; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors reasonably determines in good faith by resolution duly adopted constitutes a Superior Proposal, and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Agreement (including this Section 5.02), and subject to compliance with Sections 5.02(b) and 5.02(c), (A) furnish information with respect to or provide access the Company and its Subsidiaries to the properties person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement having terms that are at least as favorable to the Company as the terms contained in the Confidentiality Agreement, provided that all such information is provided on a prior basis to Parent, and (B) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal, but in each case only to the extent the Board of Directors of the Company determines in good faith, after consultation with outside counsel, by resolution duly adopted, that the failure to take such action would constitute a breach of the fiduciary duties of the Board of Directors of the Company under Applicable Law. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.02(a) by any director, officer or employee of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 Subsidiaries or any investment banker, attorney, accountant or other provision hereof shall prohibit advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.02(a) by the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (L 3 Communications Corp), Merger Agreement (Westwood Corp/Nv/)
No Solicitation. (a) The Company From and after the date of this Agreement until the Effective Time, Acquiror shall not, nor shall it permit directly or indirectly through any officer, director, employee, representative or agent of Acquiror or otherwise take any of the following actions with any other party other than Target and its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, designees: (i) solicit or solicit, initiate, entertain or encourage, directly or indirectly, encourage any inquiries relating toor proposals that constitute, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, share exchange, business combination, sale of a material portion of Acquiror's assets, shares of capital stock or similar transactions involving Acquiror other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal Proposal"), (ii) engage or (iii) enter into participate in negotiations or discussions concerning, or provide any agreement with respect non-public information to any Acquisition Proposal person or approve or resolve to approve any Acquisition Proposal; providedentity relating to, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or (iii) agree to, enter into into, accept, approve, recommend, authorize any agreement statement with respect to or solicit in support of any Acquisition Proposal. Upon execution Acquiror represents and warrants that it has the legal right to terminate any pending discussions or negotiations relating to an Acquisition Proposal without payment of any fee or other penalty.
(b) Acquiror shall notify Target immediately (and no later than 24 hours) after receipt by Acquiror (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the properties, books or records of Acquiror by any person or entity that informs Acquiror that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the specific terms and conditions of such proposal, inquiry or contact, as the case may be, and such other information related thereto as Target may reasonably request.
(c) Except as contemplated by this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any disclosure by Acquiror of the foregoing. Notwithstanding terms hereof (other than the foregoing, prior to the time prohibition of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined belowthis Section 4.2), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required deemed to be disclosed by the Company to Parent by a violation of this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;4.2.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Digitalpreviews Com Inc), Agreement and Plan of Reorganization (Intraop Medical Corp)
No Solicitation. (a) The From the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating toshall cause its Subsidiaries and the respective officers, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties employees directors and financial advisers of the Company Entities to not, directly or any indirectly, and shall use its reasonable best efforts to ensure that the other Representatives of its Subsidiariesthe Company Entities do not, directly or take any other action to indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making making, submission or announcement of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender Company Entity or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement Inquiry with respect to a Company Entity;
(ii) furnish any Acquisition Proposal. Upon execution information regarding any of this Agreement, the Company will immediately cease Entities to any existing activities, Person in connection with or in response to an Acquisition Proposal with respect to a Company Entity or Acquisition Inquiry with respect to a Company Entity;
(iii) engage in discussions or negotiations with any Person conducted heretofore relating to any Acquisition Proposal with respect to a Company Entity or Acquisition Inquiry with respect to a Company Entity;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to a Company Entity or Acquisition Inquiry with respect to a Company Entity or any Person or group becoming the beneficial owner of more than 5% of the equity securities of a Company Entity; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to a Company Entity; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, neither this Section 4.4(a) nor any other provision of this Agreement shall prohibit the Company from furnishing nonpublic information regarding the Company Entities to, or entering into discussions and negotiations with, any Person in response to a bona fide, unsolicited Acquisition Proposal in writing that is submitted to the Company by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any material breach of, or any action materially inconsistent with, any of the foregoing. Notwithstanding provisions set forth in this Section 4.4(a); (B) the foregoingCompany Board concludes in good faith, after having consulted with its outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Company Superior Offer; (C) at least one business day prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation) at least as favorable to the Company (in the aggregate) as the provisions of the Confidentiality Agreement as in effect immediately prior to the time execution of acceptance of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (D) the Company Common Stock for payment pursuant contemporaneously furnishes any such nonpublic information provided to such Person to Parent (to the Offerextent such nonpublic information has not been previously furnished by the Company to Parent).
(b) From the date hereof until the Effective Time or, if earlier, the Company may termination of this Agreement in accordance with its terms, Parent shall not, directly or indirectly, shall cause its Subsidiaries and the respective officers, employees, directors and financial advisers of the Parent Entities to not, directly or indirectly, and shall use its reasonable best efforts to ensure that the other Representatives of the Parent Entities do not, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to a Parent Entity or Acquisition Inquiry with respect to a Parent Entity;
(ii) furnish any information concerning its businesses or its Subsidiaries, properties or assets regarding any of the Parent Entities to any Person in connection with or “group” in response to an Acquisition Proposal with respect to a Parent Entity or Acquisition Inquiry with respect to a Parent Entity;
(as defined iii) engage in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning any Person relating to any Acquisition Proposal with respect to a Superior Parent Entity or Acquisition Inquiry with respect to a Parent Entity;
(iv) approve, endorse or recommend any Acquisition Proposal (as defined below), provided that such with respect to a Parent Entity or Acquisition Inquiry with respect to a Parent Entity or any Person or group shall have entered becoming the beneficial owner of more than 5% of the equity securities of a Parent Entity; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreementagreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to a Parent Entity; provided, however, that prior to the approval of the issuance of shares of Parent Common Stock in the Merger by the Required Parent Stockholder Vote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing nonpublic information regarding the Parent Entities to, or entering into discussions and negotiations with, any Person in response to a bona fide, unsolicited Acquisition Proposal in writing that is submitted to Parent by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any material breach of, or any action materially inconsistent with, any of the provisions set forth in this Section 4.4(b); (B) the Parent Board concludes in good faith, after having consulted with its outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Parent Superior Offer; (C) at least one business day prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions or non-solicitation provisions) at least as favorable to Parent (in the aggregate) as the provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided provided, however, that no such confidentiality agreement must permit need include “standstill” provisions); and (D) Parent contemporaneously furnishes any nonpublic information provided to such Person to the Company (to disclose the extent such nonpublic information has not been previously furnished by Parent to the Company).
(c) Each of Parent all and the Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal with respect to a Parent Entity or a Company Entity, as the case may be, or Acquisition Inquiry with respect to a Parent Entity or a Company Entity, as the case may be) advise the other party to this Agreement orally and in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the information required Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period. Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep the other party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Each of Parent and the Company shall immediately cease and cause to be disclosed terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry and shall cause any such Person to promptly return to the Company or Parent, as applicable, any confidential information provided by the Company or Parent, as applicable, to Parent by this Section 5.3) if:such Person.
(xe) Each of Parent and the Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to which any such Person party or group any of its Subsidiaries is a party or under which any such party or any of its Subsidiaries has submitted any rights, and will use its reasonable best efforts to cause each such agreement to be enforced in accordance with its terms at the request of the other party to this Agreement unless, in each case, the Company Board or the Parent Board, as applicable, determines in good faith, after consultation with its outside counsel, that failure to take such action would be a Superior Proposal;breach of its fiduciary duties to its stockholders under applicable Legal Requirements.
Appears in 2 contracts
Sources: Merger Agreement (Broadcast International Inc), Merger Agreement (Alldigital Holdings, Inc.)
No Solicitation. (a) The From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, Company shall not, nor shall it not and will not authorize or permit any of its Subsidiaries toofficers, nor shall it authorize (and shall use its best efforts not directors, employees, financial advisors, representatives or agents to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or solicit, seek, initiate, or encourage, directly or indirectly, encourage any inquiries relating or proposals that constitute, or would be reasonably likely to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets of Company and its Subsidiaries, taken as whole (other than the submission ofsale of inventory or obsolete property in the ordinary course of business), any Acquisition Proposal, sale of shares of its capital stock (iiincluding without limitation by way of a tender offer) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company similar transaction involving such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or take proposals being referred to in this Agreement as an "ACQUISITION PROPOSAL"), (ii) engage in negotiations or discussions with any Person other action to knowingly facilitate the making of any proposal that constitutesthan Parent or its affiliates (a "THIRD PARTY") concerning, or may reasonably be expected provide any non-public information to lead any Person relating to, any Acquisition Proposal Proposal, or (iii) enter into any agreement with respect agree to any Acquisition Proposal or approve or resolve to approve recommend any Acquisition Proposal; providedPROVIDED, HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof Agreement shall prohibit the prevent Company or the Company’s board of directors Company Board or the Special Committee from (xA) furnishing nonpublic information to, or entering into discussions or negotiations with, any Person in connection with an unsolicited bona fide written Acquisition Proposal by such Person or modifying or withdrawing its recommendation with respect to the transactions contemplated hereby or recommending an unsolicited bona fide written Acquisition Proposal to the Shareholders, if and only to the extent that (1) the Company Board or the Special Committee believes in good faith (after consultation with its financial and legal advisors) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to the Shareholders than the transactions contemplated by this Agreement, and the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is required for the Company Board or the Special Committee to comply with its fiduciary duties to the Shareholders under applicable law and (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such Person, the Company Board or the Special Committee receives from such Person an executed confidentiality and standstill agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement, dated April 21, 1999 between Babbage's Etc., LLC and Company, as supplemented by letter agreement, dated April 7, 2000, by and among Parent, Babbage's Etc., LLC and Company (as supplemented, the "CONFIDENTIALITY AGREEMENT"); or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Company agrees not to release any Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, an Acquisition Proposal, unless the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is necessary for the Company Board or the Special Committee to comply with its fiduciary duties to its Shareholders under applicable law. Notwithstanding anything stated in this Section 6.3, the Company need not refuse a request from any Person who has signed a standstill agreement with the Company to make an Acquisition Proposal to the Chief Executive Officer or the Board of Directors of the Company if the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is necessary for the Company Board or the Special Committee to comply with its fiduciary duties to Shareholders under applicable law.
(b) Company shall notify Parent immediately after receipt by Company (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to its properties, books or records by any Person that informs Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the terms and conditions of such proposal, inquiry or contact (including, without limitation, the identity of the Person making the Acquisition Proposal). Company shall continue to keep Parent informed, on a current basis, of the status of any such discussions or negotiations and the terms being discussed or negotiated.
(c) Neither the Company Board nor the Special Committee shall withdraw, modify or change, or propose to withdraw, modify or change, in a manner adverse to Parent, the approval or recommendation by the Company Board or the Special Committee, as the case may be, of the Offer, this Agreement or the Merger unless the Company Board or the Special Committee, as the case may be, determines, in the exercise of its fiduciary duties, that it is necessary to do so. Nothing contained in this Section 6.3(c) will prohibit Company from taking and disclosing to the Company’s stockholders Shareholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Barnes & Noble Inc), Merger Agreement (Funco Inc)
No Solicitation. (a) The From the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating toshall cause its Subsidiaries and the respective officers, directors and financial advisers of the Opnext Corporations to not, directly or indirectly, and shall use its reasonable best efforts to ensure that the other Representatives of the Opnext Corporations do not, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission of, or announcement of any Acquisition Proposal, Proposal with respect to an Opnext Corporation or Acquisition Inquiry with respect to an Opnext Corporation;
(ii) participate in furnish any discussions or negotiations information regarding any Acquisition Proposal, or of the Opnext Corporations to any Person in connection with any or in response to an Acquisition Proposal, or furnish to any Person any information or data Proposal with respect to an Opnext Corporation or provide access Acquisition Inquiry with respect to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or an Opnext Corporation;
(iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained engage in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore relating to any Acquisition Proposal with respect to an Opnext Corporation or Acquisition Inquiry with respect to an Opnext Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to an Opnext Corporation or Acquisition Inquiry with respect to an Opnext Corporation or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to an Opnext Corporation; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, neither this Section 4.4(a) nor any other provision of this Agreement shall prohibit the Company from furnishing nonpublic information regarding the Opnext Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is submitted to the Company by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any material breach of, or any action materially inconsistent with, any of the foregoing. Notwithstanding provisions set forth in this Section 4.4(a); (B) the foregoingCompany Board concludes in good faith, after having consulted with its outside legal counsel, that such Acquisition Proposal is reasonably likely to lead to a Company Superior Offer; (C) at least one business day prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation) at least as favorable to the Company (in the aggregate) as the provisions of the Confidentiality Agreement as in effect immediately prior to the time execution of acceptance of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (D) the Company Common Stock for payment pursuant contemporaneously furnishes any such nonpublic information provided to such Person to Parent (to the Offerextent such nonpublic information has not been previously furnished by the Company to Parent).
(b) From the date hereof until the Effective Time or, if earlier, the Company may termination of this Agreement in accordance with its terms, Parent shall not, directly or indirectly, shall cause its Subsidiaries and the respective officers, directors and financial advisers of the Oclaro Corporations to not, directly or indirectly, and shall use its reasonable best efforts to ensure that the other Representatives of the Oclaro Corporations do not, directly or indirectly
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation;
(ii) furnish any information concerning its businesses or its Subsidiaries, properties or assets regarding any of the Oclaro Corporations to any Person in connection with or “group” in response to an Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation;
(as defined iii) engage in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior any Person relating to any Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation;
(as defined below)iv) approve, provided that such endorse or recommend any Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation or any Person or group shall have entered becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreementagreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to an Oclaro Corporation; provided, however, that prior to the approval of the issuance of shares of Parent Common Stock in the Merger by the Required Parent Stockholder Vote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing nonpublic information regarding the Oclaro Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is submitted to Parent by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any material breach of, or any action materially inconsistent with, any of the provisions set forth in this Section 4.4(b); (B) the Parent Board concludes in good faith, after having consulted with its outside legal counsel, that such Acquisition Proposal is reasonably likely to lead to a Company Superior Offer; (C) at least one business day prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions or non-solicitation provisions) at least as favorable to Parent (in the aggregate) as the provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided provided, however, that no such confidentiality agreement must need include “standstill” provisions); and (D) Parent contemporaneously furnishes any nonpublic information provided to such Person to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company).
(c) Each of Parent and the Company shall promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal with respect to an Oclaro Corporation or an Opnext Corporation, as the case may be, or Acquisition Inquiry with respect to an Oclaro Corporation or an Opnext Corporation, as the case may be) advise the other party to this Agreement orally and in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period. Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep the other party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Each of Parent and the Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(e) Each of Parent and the Company agrees not to release or permit the Company release of any Person from, or to disclose waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to Parent all which any such party or any of its Subsidiaries is a party or under which any such party or any of its Subsidiaries has any rights, and will use its reasonable best efforts to cause each such agreement to be enforced in accordance with its terms at the request of the information required other party to be disclosed by this Agreement unless, in each case, the Company Board or the Parent Board, as applicable, determines in good faith, after consultation with its outside counsel, that failure to Parent by this Section 5.3) if:
(x) take such Person or group has submitted action would be a Superior Proposal;breach of its fiduciary duties to its stockholders under applicable Legal Requirements.
Appears in 2 contracts
Sources: Merger Agreement (Opnext Inc), Merger Agreement (Oclaro, Inc.)
No Solicitation. (a) The Company shall not, nor directly or indirectly, shall it permit any of cause its Subsidiaries toand the respective officers, nor shall it authorize (directors, financial advisers, attorneys and accountants of the Avanex Corporations to not, directly or indirectly and shall use its reasonable best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or ensure that the other advisor or representative (collectively, “Representatives”) Representatives of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourageAvanex Corporations do not, directly or indirectly:
(i) solicit, any inquiries relating toinitiate, knowingly encourage or knowingly facilitate the making, submission of, or announcement of any Acquisition Proposal, Proposal with respect to an Avanex Corporation or Acquisition Inquiry with respect to an Avanex Corporation;
(ii) participate in furnish any discussions or negotiations information regarding any Acquisition Proposal, or of the Avanex Corporations to any Person in connection with any or in response to an Acquisition Proposal, or furnish to any Person any information or data Proposal with respect to an Avanex Corporation or provide access Acquisition Inquiry with respect to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or an Avanex Corporation;
(iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained engage in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore relating to any Acquisition Proposal with respect to an Avanex Corporation or Acquisition Inquiry with respect to an Avanex Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to an Avanex Corporation or Acquisition Inquiry with respect to an Avanex Corporation or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to an Avanex Corporation; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, neither this Section 4.4(a) nor any other provision of this Agreement shall prohibit the Company from furnishing nonpublic information regarding the Avanex Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Company Superior Offer that is submitted to the Company by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any breach of, or any action inconsistent with, any of the foregoing. Notwithstanding provisions set forth in this Section 4.4(a); (B) the foregoingCompany Board concludes in good faith, after having consulted with its outside legal counsel, that failure to take such action would be a breach of the fiduciary duties of the Company Board to the Company’s stockholders under applicable law; (C) at least four business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation) at least as favorable to the Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the time execution of acceptance of Company Common Stock for payment pursuant this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (D) at least two business days prior to the Offerfurnishing any such nonpublic information to such Person, the Company may furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent).
(b) Parent shall not, directly or indirectly, shall cause its Subsidiaries and the respective officers, directors, financial advisers, attorneys and accountants of the Bookham Corporations to not, directly or indirectly and shall use its reasonable best efforts to ensure that the other Representatives of the Bookham Corporations do not, directly or indirectly
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(ii) furnish any information concerning its businesses or its Subsidiaries, properties or assets regarding any of the Bookham Corporations to any Person in connection with or “group” in response to an Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(as defined iii) engage in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning any Person relating to any Acquisition Proposal with respect to a Superior Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal (as defined below), provided that such with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation or any Person or group shall have entered becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreementagreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to a Bookham Corporation; provided, however, that prior to the approval of the issuance of shares of Parent Common Stock in the Merger by the Required Parent Stockholder Vote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing nonpublic information regarding the Bookham Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Parent Superior Offer that is submitted to Parent by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any breach of, or any action inconsistent with, any of the provisions set forth in this Section 4.4(b); (B) the Parent Board concludes in good faith, after having consulted with its outside legal counsel, that failure to take such action would be a breach of the fiduciary duties of the Parent Board to Parent’s stockholders under applicable law; (C) at least four business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions or non-solicitation provisions) at least as favorable to Parent as the provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided provided, however, that no such confidentiality agreement must need include “standstill” provisions); and (D) at least two business days prior to furnishing any such nonpublic information to such Person, Parent furnishes such nonpublic information to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company).
(c) Each of Parent and the Company shall promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal with respect to a Bookham Corporation or an Avanex Corporation, as the case may be, or Acquisition Inquiry with respect to a Bookham Corporation or an Avanex Corporation, as the case may be) advise the other party to this Agreement orally and in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period. Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep the other party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Each of Parent and the Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(e) Each of Parent and the Company agrees not to release or permit the Company release of any Person from, or to disclose waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to Parent all which any such party or any of its Subsidiaries is a party or under which any such party or any of its Subsidiaries has any rights, and will use its reasonable best efforts to cause each such agreement to be enforced in accordance with its terms at the request of the information required other party to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Avanex Corp), Agreement and Plan of Merger and Reorganization (Bookham, Inc.)
No Solicitation. (a) The Company shall not, nor shall it permit directly or indirectly, through any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director director, employee, representative or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) agent of the Company or any of its Subsidiaries tosubsidiaries, (i) solicit solicit, initiate or initiate, or encourage, directly or indirectly, encourage the initiation of any inquiries relating toor proposals regarding any merger, sale of substantial assets, sale of shares of capital stock (including without limitation by way of a tender offer, but not in connection with Permitted Acquisitions) or similar transactions involving the submission of, Company or any subsidiaries of the Company other than the Merger (any of the foregoing inquiries or proposals being referred to herein as an "Acquisition Proposal"), (ii) participate engage in any negotiations or discussions or negotiations regarding any Acquisition Proposalconcerning, or in connection with provide any Acquisition Proposal, or furnish nonpublic information to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead person relating to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose agree to approve or recommend any Acquisition Proposal. Nothing contained in this Section 5.2(a) shall prevent the Board of Directors of the Company from considering, negotiating, approving and recommending to the stockholders of the Company, or enter into any agreement taking the actions permitted by Section 5.2(c) with respect to, a bona fide Acquisition Proposal not solicited in violation of this Agreement, provided the Board of Directors of the Company determines in good faith (upon written advice of independent counsel) that it is required to do so in order to discharge properly its fiduciary duties.
(b) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, or any modification of or amendment to any Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Upon execution Such notice to Parent shall be made orally and in writing, and shall indicate whether the Company is providing or intends to provide the person making the Acquisition Proposal with access to information concerning the Company as provided in Section 5.2(c).
(c) If the Board of Directors of the Company receives a request for material nonpublic information by a person who makes a bona fide Acquisition Proposal, and the Board of Directors determines in good faith and upon the written advice of independent counsel that it is required to cause the Company to act as provided in this AgreementSection 5.2(c) in order to discharge properly the directors' fiduciary duties, then, provided the person making the Acquisition Proposal has executed a confidentiality agreement similar to the one then in effect between the Company and Parent, the Company will may provide such person with access to information regarding the Company.
(d) The Company shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person (other than Parent and Acquisition) conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior The Company agrees not to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to release any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, third party from the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such any confidentiality agreement must permit to which the Company to disclose to Parent all is a party.
(e) The Company shall ensure that the officers, directors and employees of the information required to be disclosed Company and its subsidiaries and any investment banker or other advisor or representative retained by the Company to Parent by are aware of the restrictions described in this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;5.2.
Appears in 2 contracts
Sources: Merger Agreement (Laidlaw Inc), Merger Agreement (American Medical Response Inc)
No Solicitation. (a) The Company shall not, nor and shall it not authorize or permit any of its Subsidiaries toofficers, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director directors or employee of, employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries retained by it to, (ia) solicit solicit, initiate or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties including by way of the Company or any of its Subsidiariesfurnishing information), or take any other action to knowingly facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal (as hereinafter defined), or (iiib) enter into agree to or endorse any agreement with respect Takeover Proposal. Notwithstanding the immediately preceding sentence, if the Company shall not have breached the covenant provided by clause (a) of the immediately preceding sentence and a Takeover Proposal, or a written expression of interest that can reasonably be expected to any Acquisition Proposal or approve or resolve lead to approve any Acquisition a Takeover Proposal; provided, shall occur, then, upon the good faith determination of the Board of Directors of the Company, acting upon the advice of its legal and financial advisors, that nothing contained the Takeover Proposal is a better offer than the transactions contemplated by this Agreement and consistent with the fiduciary obligations under applicable law of the Company's Board of Directors, the Company and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish in connection therewith information (including non-public information, but only pursuant to a confidentiality agreement in customary form, including customary standstill provisions) and take such other actions as are consistent with the fiduciary obligations of the Company's Board of Directors, and such actions shall not be considered a breach of this Section 5.3 5.12 or any other provision hereof of this Agreement; provided, however, that the Company shall prohibit not, and shall not permit any of its officers, directors, employees or other representatives to, agree to or endorse any Takeover Proposal unless the Company shall have terminated this Agreement pursuant to Section 7.1(e) and paid to Parent all amounts payable to Parent pursuant to Section 5.6(b). The Company shall promptly advise Parent orally and in writing of any inquiries or Takeover Proposals and keep Parent informed of the status and material information with respect to such inquiries or Takeover Proposals. As used in this Agreement, "Takeover Proposal" shall mean any tender or exchange offer, proposal for a merger, consolidation or other business combination involving the Company or the Company’s board of directors from (x) taking Company Common Stock and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer made by a third party pursuant Person other than Parent or any proposal or offer to Rules 14d-9 and 14e-2 promulgated under the Exchange Actacquire in any manner a substantial equity interest in, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment a substantial portion of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modifyassets of, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of other than the transactions contemplated by this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Arrow Electronics Inc), Merger Agreement (Arrow Electronics Inc)
No Solicitation. (a) The From the date hereof until the earlier of the First Merger Effective Time and the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it permit any of cause its Subsidiaries toand the respective officers, nor shall it authorize (directors, financial advisers, attorneys and accountants of the Company Entities to not, and shall use its reasonable best efforts not to permitensure that the other Representatives of the Company Entities do not, in each case, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any affiliate, officer, director Acquisition Proposal with respect to the Company or employee ofAcquisition Inquiry with respect to the Company;
(ii) furnish any information regarding, or afford any investment bankerPerson access to, attorney the business, properties, assets, books or other advisor records of any of the Company Entities to any Person in connection with or representative in response to an Acquisition Proposal with respect to the Company or Acquisition Inquiry with respect to the Company;
(collectivelyiii) engage in discussions (except to disclose to such Person the existence of this Section 4.4) or negotiations with any Person relating to any Acquisition Proposal with respect to the Company or Acquisition Inquiry with respect to the Company;
(iv) approve, “Representatives”) of endorse or recommend any Acquisition Proposal with respect to the Company or Acquisition Inquiry with respect to the Company or any Person or group becoming an “interested stockholder” under Section 203 of its Subsidiaries tothe DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to the Company; provided, (ihowever, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, neither this Section 4.4(a) solicit or initiatenor any other provision of this Agreement shall prohibit the Company from furnishing any information regarding, or encourageaffording any Person access to the business, directly properties, assets, books or indirectly, records of any inquiries relating of the Company Entities to, or the submission of, any Acquisition Proposal, (ii) participate engaging in any discussions or and negotiations regarding any Acquisition Proposal, or in connection with any Person (it being understood that clause “(i)” above shall not prohibit discussions and negotiations otherwise permitted by this proviso) in response to an Acquisition Proposal, or furnish to any Person any information or data Proposal with respect to or provide access the Company that is submitted to the properties of Company by such Person after the date hereof (and not withdrawn) that the Company or any of Board concludes in good faith, after consulting with its Subsidiariesoutside legal counsel and financial advisors, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may could reasonably be expected to lead to, any result in a Company Superior Offer if: (A) such Acquisition Proposal or (iii) enter into did not result from any agreement with respect to material breach of any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained of the provisions set forth in this Section 5.3 4.4 or Section 5.2(b); (B) the Company Board concludes in good faith, after having consulted with its outside legal counsel, that failure to take such action could reasonably be expected to constitute a breach of the fiduciary duties of the Company Board under applicable Legal Requirements; (C) at least one Business Day prior to furnishing any such nonpublic information or public access to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information or access to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing (x) customary non-solicitation provisions and (y) other provision hereof provisions (including nondisclosure provisions and use restrictions) that are at least as favorable to the Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement, which confidentiality agreement shall prohibit not include any provisions that would prevent or restrict the Company or the Company’s board Representatives from providing any information to Parent to which Parent would be entitled under any provision of directors from this Agreement (xprovided, however, that no such confidentiality agreement need include “standstill” provisions); and (D) taking and disclosing substantially concurrently with the furnishing of any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the Company’s stockholders a position extent such nonpublic information has not been previously furnished by the Company to Parent).
(b) From the date hereof until the earlier of the First Merger Effective Time and the termination of this Agreement in accordance with its terms, Parent shall not, shall cause its Subsidiaries and the respective officers, directors, financial advisers, attorneys and accountants of the Parent Entities to not, and shall use its reasonable best efforts to ensure that the other Representatives of the Parent Entities do not, in each case, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to a tender Parent or exchange offer by a third party pursuant Acquisition Inquiry with respect to Rules 14d-9 and 14e-2 promulgated under the Exchange ActParent;
(ii) furnish any information regarding, or (y) making such disclosure to afford any Person access to, the Company’s stockholders asbusiness, in the good faith judgment properties, assets, books or records of any of the Company’s board Parent Entities to any Person in connection with or in response to an Acquisition Proposal with respect to Parent or Acquisition Inquiry with respect to Parent;
(iii) engage in discussions (except to disclose to such Person the existence of directorsthis Section 4.4) or negotiations with any Person relating to any Acquisition Proposal with respect to Parent or Acquisition Inquiry with respect to Parent;
(iv) approve, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve endorse or recommend any Acquisition ProposalProposal with respect to Parent or Acquisition Inquiry with respect to Parent or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL or waive the applicability of Section 203 of the DGCL with respect to any Person or group; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to Parent; provided, however, that prior to the approval of the Parent Share Issuance by the Required Parent Stockholder Vote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing any information regarding, or affording any Person access to the business, properties, assets, books or records of any of the Parent Entities to, or engaging in discussions and negotiations with any Person (it being understood that clause “(i)” above shall not prohibit discussions and negotiations otherwise permitted by this proviso) in response to an Acquisition Proposal with respect to Parent that is submitted to Parent by such Person after the date hereof (and not withdrawn) that the Parent Board concludes in good faith, after consulting with its outside legal counsel and financial advisors, could reasonably be expected to result in a Parent Superior Offer if: (A) such Acquisition Proposal did not result from any material breach of any of the provisions set forth in this Section 4.4 or Section 5.3(b); (B) the Parent Board concludes in good faith, after having consulted with its outside legal counsel, that failure to take such action could reasonably be expected to constitute a breach of the fiduciary duties of the Parent Board under applicable Legal Requirements; (C) at least one Business Day prior to furnishing any such nonpublic information or public access to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information or access to, or enter into any discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement with respect containing (x) customary non-solicitation provisions and (y) other provisions (including nondisclosure provisions and use restrictions) that are at least as favorable to any Acquisition Proposal. Upon Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement, which confidentiality agreement shall not include any provisions that would prevent or restrict Parent or Parent’s Representatives from providing any information to the Company will immediately cease to which the Company would be entitled under any existing activitiesprovision of this Agreement (provided, discussions or negotiations however, that no such confidentiality agreement need include “standstill” provisions); and (D) substantially concurrently with the furnishing of any Person conducted heretofore such nonpublic information to such Person, Parent furnishes such nonpublic information to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company).
(c) Each of Parent and the Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal with respect to the Company or Parent, as the case may be, or Acquisition Inquiry with respect to the Company or Parent, as the case may be) advise the other Party to this Agreement in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such Party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period (including copies of any written offer). Each Party receiving an Acquisition Proposal or Acquisition Inquiry with respect to such Party, as the case may, be shall keep the other Party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Each of Parent and the Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement between any of the foregoing. Notwithstanding Parent Entities or any of their Representatives, or any of the foregoingCompany Entities or any of their Representatives, prior and any other Person that relate to any Acquisition Proposal or Acquisition Inquiry with respect to the time Company or Parent, as the case may be.
(e) Each of acceptance of Company Common Stock for payment pursuant to the Offer, Parent and the Company may furnish information concerning its businesses agrees not to release or its Subsidiaries, properties or assets to permit the release of any Person from, or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person to waive or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to disclose which any such Party or any of its Subsidiaries is a Party or under which any such Party or any of its Subsidiaries has any rights, and will use its reasonable best efforts to Parent all cause each such agreement to be enforced in accordance with its terms at the request of the information required other Party to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)
No Solicitation. (a) The Company From the execution and delivery of this Agreement and until the earlier to occur of the Effective Time and termination of this Agreement pursuant to Section 7.1 hereof, Seagate and its Subsidiaries shall not, nor and they shall it permit any of its Subsidiaries tocause their respective officers, nor shall it authorize (and shall use its best efforts not to permit) any affiliatedirectors, officer, director affiliates or employee of, employees or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or retained by any of its Subsidiaries them not to, directly or indirectly (i) solicit or solicit, initiate, encourage or encourageinduce the making, directly submission or indirectly, announcement of any inquiries relating to, or the submission of, any Seagate Acquisition ProposalProposal (as defined in Section 5.4(b) hereof), (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Seagate Acquisition Proposal Proposal, (iii) engage in discussions with any person with respect to any Seagate Acquisition Proposal, (iv) subject to the terms of Section 5.2(c) hereof, approve, endorse or recommend any Seagate Acquisition Proposal, or (iiiv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Seagate Acquisition Transaction (as defined in Section 5.4(b) hereof); provided, however, that until the date on which this Agreement is approved by the requisite vote of the stockholders of Seagate, the terms of this Section 5.4(a) shall not prohibit Seagate from furnishing information regarding Seagate and its Subsidiaries to, entering into a confidentiality or non-disclosure agreement with, or entering into discussions with, any person or group in response to a Seagate Superior Offer submitted by such person or group (and not withdrawn) if (a) neither Seagate nor any agents or representative of Seagate and its Subsidiaries shall have violated any of the restrictions set forth in this Section 5.4(a), (b) the Board of Directors of Seagate concludes in good faith, after consultation with its outside legal counsel, that such action is necessary in order for the Board of Directors of Seagate to comply with its fiduciary obligations to the stockholders of Seagate under applicable Law, (c) Seagate receives from such person or group an executed confidentiality or non-disclosure agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such person or group by or on behalf of Seagate and containing terms no less favorable to the disclosing party than the terms of the Confidentiality Agreement (including with respect to any Acquisition Proposal standstill arrangements, unless the standstill arrangements in the Confidentiality Agreement are waived and (d) prior to furnishing any such non-public information to such person or approve group, or resolve to approve entering into negotiations or discussions, Seller notifies Purchaser promptly of such inquiries, proposals or offers received by, any Acquisition Proposal; providedsuch information requested from, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the Company name of the person and the terms and conditions of any inquiries, proposals or the Company’s board of directors from (x) taking offers, and disclosing furnishes such non-public information to Veritas to the Company’s stockholders a position with respect extent such information has not been previously furnished to a tender or exchange offer by a third party pursuant to Rules 14d-9 Veritas. Seagate and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will its subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Person parties conducted heretofore with respect to any Seagate Acquisition Proposal.
(b) For all purposes of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offerand under this Agreement, the Company may furnish information concerning its businesses term "SEAGATE ACQUISITION PROPOSAL" shall mean any offer or its Subsidiaries, properties proposal (other than an offer or assets proposal by Veritas) relating to any Person Seagate Acquisition Transaction. For all purposes of and under this Agreement, "SEAGATE ACQUISITION TRANSACTION" shall mean any transaction or “series of related transactions, other than the transactions contemplated by this Agreement or the OD Documents, involving: (i) any acquisition or purchase from Seagate by any person or "group” " (as defined in under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) and may negotiate and participate of more than fifteen percent (15%) in discussions and negotiations with such Person interest of the total outstanding voting securities of Seagate, or group whether any tender offer or not such Person exchange offer that if consummated would result in any person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal "group" (as defined belowunder Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) beneficially owning more than fifteen percent (15%) of the total outstanding voting securities of Seagate, or any merger, consolidation, business combination or similar transaction involving Seagate pursuant to which the stockholders of Seagate immediately preceding such transaction would hold less than fifteen percent (15%) of the equity interests in the surviving or resulting entity of such transaction; (ii) any sale, lease (other than in the ordinary course of business), provided that such Person or group shall have entered into a confidentiality agreementexchange, the confidentiality provisions of which shall be no more favorable to such third party transfer, license (other than those provided for in the Confidentiality Agreement ordinary course of business), acquisition or disposition of more than fifteen percent (provided that such confidentiality agreement must permit the Company to disclose to Parent all 15%) of the information required to be disclosed assets and properties of Seagate; or (iv) any liquidation or dissolution of Seagate, excluding, in all cases any disposition of the assets covered by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;OD Documents.
Appears in 2 contracts
Sources: Merger Agreement (Veritas Software Corp /De/), Agreement and Plan of Merger and Reorganization (Seagate Technology Inc)
No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of of, the Company or any of its Subsidiaries Company Subsidiary to, (i) solicit or initiate, or encourage, directly or indirectlyindirectly solicit, any inquiries relating to, initiate or knowingly encourage the submission of, of any Acquisition Company Takeover Proposal, (ii) enter into any agreement or understanding with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate or encourage any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Company Takeover Proposal; provided, however, that nothing contained prior to the Offer Closing Date, in response to a bona fide written Company Takeover Proposal that was not solicited by the Company, any Company Subsidiary or any of their respective Representatives, that did not otherwise result from a breach of this Section 5.3 or any other provision hereof shall prohibit 5.04(a) and that the Company or Board determines, in good faith, after consultation with the Company’s board of directors from outside counsel and independent financial advisor, constitutes or is reasonably likely to result in a Superior Company Proposal (xa “Qualifying Company Takeover Proposal”), the Company may (A) taking and disclosing to the Company’s stockholders a position furnish information with respect to a tender or exchange offer by a third party the Company to the Person making such Qualifying Company Takeover Proposal and its Representatives pursuant to Rules 14d-9 and 14e-2 promulgated under an Acceptable Confidentiality Agreement so long as the Exchange Act, or (y) making such disclosure to the Company’s stockholders asCompany also provides Parent, in accordance with the good faith judgment terms of the Company’s board of directorsConfidentiality Agreement, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement non-public information with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activitiesprovided to such other Person which was not previously provided to Parent, and (B) participate in discussions or negotiations with such Person and its Representatives regarding such Qualifying Company Takeover Proposal, including soliciting the making of a revised Qualifying Company Takeover Proposal and waiving standstill provisions in any Person conducted heretofore confidentiality agreement with respect to any such Person. Any violation of the foregoing. Notwithstanding restrictions set forth in the foregoing, prior to the time preceding sentence by any Representative or affiliate of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which Subsidiary shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required deemed to be disclosed by the Company to Parent by a breach of this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;5.04(a)
Appears in 2 contracts
Sources: Merger Agreement (Hisamitsu U.S., Inc.), Merger Agreement (Noven Pharmaceuticals Inc)
No Solicitation. (a) The Company shall not, nor shall it ensure that its subsidiaries do not, and shall not authorize or permit any of the officers, directors, employees, and other agents and representatives, of Company and its Subsidiaries subsidiaries to, nor shall it authorize directly or indirectly, (and shall use its best efforts not i) take any action to permitsolicit, initiate, knowingly facilitate or encourage the making, submission or announcement of any Takeover Proposal, (ii) any affiliate, officer, director engage in negotiations or employee ofdiscussions regarding, or disclose any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the nonpublic information relating to Company or any of its Subsidiaries to, (i) solicit subsidiaries or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide afford access to the properties properties, books or records of the Company or any of its Subsidiariessubsidiaries with respect to, any inquiry or take any other action to knowingly facilitate the making of any proposal that constitutes, constitutes or may would reasonably be expected to lead toto a Takeover Proposal, any Acquisition Proposal or (iii) enter into any letter of intent or similar document or any other contract, agreement or commitment contemplating or otherwise relating to any Takeover Proposal.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the Company Stockholders Meeting, if the Company receives a bona fide written Takeover Proposal, or a bona fide written expression of interest that could reasonably be expected to lead to a Takeover Proposal and the Board of Directors of Company in good faith (i) determines (after consultation with its financial advisors) that such Takeover Proposal (or written expression of interest) constitutes or could reasonably be expected to lead to a Superior Proposal, and (ii) determines (after consultation with its outside legal counsel) that the failure to take such action with respect to such Takeover Proposal would be a breach of its fiduciary duties to the stockholders of the Company under applicable law, then Company and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives may take any Acquisition of the actions otherwise prohibited by the terms of Section 4.3(a)(ii); provided, that Company first (A) notifies Parent in writing of such determination by the Company Board of Directors, (B) provides Parent with a true and complete copy of such Takeover Proposal (or approve written expression of interest), (C) provides Parent with all information provided to such third party, written or resolve oral, including but not limited to approve all documents containing or referring to information of Company that are supplied to such third party, and (D) provides any Acquisition such non public information pursuant to a non-disclosure agreement at least as restrictive with respect to matters of confidentiality of information as the Confidentiality Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, Company’s Board of Directors shall continue to recommend the Merger, and may not recommend any Takeover Proposal, unless and until such time as (i) the Company’s Board of Directors determines that it has received a Superior Proposal, and (ii) the Board of Directors determines in connection with receipt of such Superior Proposal, after consultation with outside legal counsel, that continuing to make such recommendation with respect to the Merger, failing to change or withdraw such recommendation with respect to the Merger, or failing to recommend such Superior Proposal, would be a breach of its fiduciary duties to the stockholders of the Company under applicable law, at which time the Company’s Board of Directors may change or withdraw its recommendation with respect to the Merger or recommend such Superior Proposal; provided, that, before and as a condition to taking any such action, (i) Company first notifies Parent, in writing and at least 72 hours before doing so, of this intention to take such action, and (ii) Company attaches the most current version of such Superior Proposal (or a description of all material terms and conditions thereof), and (iii) Parent fails to make, within 72 hours of receipt of such written notification, an offer that nothing contained the Board of Directors of Company determines, in good faith after consultation with its financial advisors, is at least as favorable to the stockholders of Company from a financial point of view as such Superior Proposal. Company shall make its senior executives available for discussions with Parent and otherwise shall negotiate in good faith with Parent with respect to the terms and conditions of this Agreement and the Merger during such 72-hour period.
(d) Notwithstanding anything herein to the contrary, Company shall in all events call, give notice of, convene and hold the Company Stockholders Meeting and allow Company stockholders to vote on the Merger and transactions contemplated hereby, unless Parent shall have terminated this Agreement pursuant to Section 7.1(a)(iii) and Company shall have paid to Parent all amounts payable to Parent pursuant to Section 7.3(b). Company shall not submit to the vote of its stockholders any Takeover Proposal, or propose to do so, prior to termination of this Agreement.
(e) Company shall (i) promptly notify Parent after receipt, but in no event later than 24 hours from such receipt, of any Takeover Proposal (or any notice from any Person that such Person is considering making a Takeover Proposal), or any request for non-public information relating to Company or any of its subsidiaries or for access to the properties, books or records of Company or any of its subsidiaries, by any Person that has advised Company that it may be considering making, or that has made, a Takeover Proposal; (ii) keep Parent informed of the status and details of any such Takeover Proposal notice or request in all material respects; and (iii) provide Parent with a true and complete copy of such Takeover Proposal notice or request, if it is in writing, or an oral summary thereof, if it is not in writing.
(f) Nothing in this Section 5.3 or any other provision hereof Agreement shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s its stockholders a position with respect to a tender contemplated by Rule 14e-2(a) or exchange offer by a third party pursuant to Rules Rule 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) from making such any statement or other disclosure to if the Company’s stockholders as, Board of Directors determines in the good faith judgment (after consultation with its outside legal counsel) that the failure to make such statement or other disclosure would be a breach of its fiduciary duties to the stockholders of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required Company under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution .
(g) For purposes of this Agreement, “Takeover Proposal” means any offer or tender offer or proposal for, or any indication of interest in (whether written or oral), (i) a merger or other business combination involving the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of its subsidiaries, (ii) the foregoing. Notwithstanding the foregoing, prior to the time acquisition of acceptance of Company Common Stock for payment pursuant to the Offer, any significant equity interest (15% or more) in the Company may furnish information concerning or any of its businesses subsidiaries, or its Subsidiaries, properties (iii) the acquisition of a significant portion (15% or more on a consolidated basis) of the assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with of the Company concerning a Superior Proposal (as defined below)and its subsidiaries, provided that such Person or group shall have entered into a confidentiality agreement, in each case other than the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent transactions contemplated by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bea Systems Inc), Merger Agreement (Plumtree Software Inc)
No Solicitation. (a) The After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, nor not and shall it not permit any of its Subsidiaries Subsidiary to, nor shall it authorize (and the Company shall use its reasonable best efforts not to permit) cause any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or its Subsidiary, and any of attorney, accountant, investment banker, financial advisor or other agent retained by it or its Subsidiaries Subsidiary, not to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating toinitiate, solicit, encourage or the submission ofnegotiate or provide nonpublic or confidential information to facilitate, any Acquisition Proposalproposal or offer (other than any proposal or offer by Parent or any of its subsidiaries) to acquire all or 15% or more of the business, (ii) participate in any discussions properties or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties capital stock of the Company or its Subsidiary, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions, other than any transaction involving Parent or any of its Subsidiariessubsidiaries, being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above or take any other action provision of this Agreement, prior to knowingly facilitate the making Effective Time, the Company may, in response to an unsolicited bona fide written offer or proposal with respect to a potential or proposed Acquisition Transaction (an "Acquisition Proposal") from a corporation, partnership, person or other entity or group (a "Potential Acquiror") which the Company's Board of any proposal that constitutesDirectors determines, or may in good faith and after consultation with its independent financial advisor and legal counsel, could reasonably be expected to lead to a Superior Proposal, furnish confidential or nonpublic information to, any and engage in discussions and negotiate with, such Potential Acquiror, provided that the Company's Board of Directors determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their fiduciary duties under applicable law. For purposes of this Agreement, "Superior Proposal" means an Acquisition Proposal which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor and legal counsel, would, if consummated, likely provide consideration to the holders of Company Common Stock with greater financial value than the consideration payable in the Offer and the Merger. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or (iii) enter into negotiations with any agreement parties with respect to any Acquisition Proposal Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or approve or resolve entities referred to approve in Section 4.02(a) that have been engaged in connection with the evaluation of a possible Acquisition Transaction of the obligations undertaken in this Section 4.02.
(c) The Company shall promptly notify Parent after receipt of any Acquisition Proposal; provided. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the material terms and conditions of such proposal, to the extent known. The Company shall thereafter keep Parent informed, on a reasonably current basis, on the status and terms of any such Acquisition Proposal and the status of any discussion or negotiations with any Potential Acquiror related thereto.
(d) At any time prior to the Effective Time, the Board of Directors of the Company may withdraw or modify the recommendation by the Board of Directors of the Company of this Agreement, the Offer or the Merger, if the Board of Directors of the Company determines in good faith (after consultation with outside counsel) that nothing its fiduciary obligations require it to do so.
(e) Nothing contained in this Section 5.3 4.02 or any other provision hereof of this Agreement shall prohibit the Company or the Company’s board Board of directors Directors of the Company from (xi) taking and disclosing to the Company’s 's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules Rule 14d-9 and 14e-2 promulgated under the Exchange Act, Act or (yii) making such disclosure to the Company’s 's stockholders as, in the good faith judgment of the Board of Directors of the Company’s board , with the advice of directors, pursuant to advice from independent legal outside counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Matrix Pharmaceutical Inc/De), Merger Agreement (Matrix Pharmaceutical Inc/De)
No Solicitation. (a) The Each of Parent and the Company shall immediately cease any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal and, if applicable, shall seek to have returned to the Company or Parent as applicable any information and materials that have been provided in any such discussions or negotiations and shall immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. From and after the date hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with Article VII, each of the Company and Parent shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use or permit any of its best efforts not to permit) any affiliateofficers, officer, director directors or employee of, employees or any Affiliate, investment banker, attorney financial advisor, attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company Representative retained by it or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any Acquisition Proposal, knowingly encourage (iiincluding by way of furnishing information) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate facilitate, any inquiry or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to any Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into pursuant to subsection (A) of the proviso of this sentence) or (iii) enter into into, continue or otherwise participate in any agreement with respect to discussions or negotiations regarding any Acquisition Proposal or approve or resolve to approve any Acquisition Takeover Proposal; provided, however, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit if, prior to obtaining the Company or the Company’s board of directors from Stockholder Approval (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment case of the Company’s board ) or the Parent Stockholder Approval (in the case of directorsParent), pursuant to advice from independent legal counselfollowing the receipt of a Superior Proposal or a Takeover Proposal that the Company Board or Parent Board, as applicable, determines in good faith is reasonably expected to be required under applicable law, provided lead to a Superior Proposal and that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, in either case was unsolicited and made after the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution date of this Agreement in circumstances not otherwise involving a breach of this Agreement, the Company will immediately cease any existing activitiesBoard or the Parent Board, as applicable, determines in good faith, after consultation with outside legal counsel, that a failure to take such action with respect to such Takeover Proposal would be inconsistent with the exercise of its fiduciary duties to the Company’s stockholders or Parent’s stockholders, as applicable, under applicable Law, the Company or Parent, as applicable, may, in response to such Takeover Proposal, and subject to compliance with Section 5.4(c), (A) furnish information with respect to the Company or Parent, as applicable, to the party making such Takeover Proposal pursuant to a confidentiality agreement (an “Acceptable Confidentiality Agreement”) that contains confidentiality and standstill provisions not less favorable to the Company or Parent, as the case may be, than those contained in the Confidentiality Agreements; provided that (x) such confidentiality agreement shall permit the provision of all information to Parent and the Company, as applicable, that is contemplated or required by this Section 5.4 to be provided to Parent or the Company, as applicable, and (y) such confidentiality agreement shall include a standstill, except that, (i) such standstill need not prohibit the Person making such Takeover Proposal from making a Takeover Proposal to the Company Board or Parent Board, as applicable, in a confidential manner and (ii) such confidentiality agreement need not include a standstill to the extent that the Person making such Alternative Acquisition Proposal has commenced a tender offer or exchange offer incorporating an Takeover Proposal, and (B) engage in discussions or negotiations with any Person conducted heretofore with respect to any of the foregoingsuch party regarding such Takeover Proposal. Notwithstanding the foregoingIn addition, prior notwithstanding anything in this Agreement to the time contrary, following the receipt of acceptance of Company Common Stock for payment pursuant to the Offera Takeover Proposal, the Company Board or Parent Board, as applicable, may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in contact the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not of Persons who has made such Person or group has had previous discussions or negotiations with Takeover Proposal solely for the purpose of seeking clarification of the terms and conditions thereof and the Company concerning or Parent, as applicable, shall promptly provide a Superior Proposal (summary of such clarifications to the other Party. It is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of each of the Company or Parent, as defined below)applicable, provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions any of which their respective Subsidiaries shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required deemed to be disclosed a breach of this Section 5.4(a) by the Company or Parent, as applicable. Prior to the termination of this Agreement, except in connection with a concurrent termination of this Agreement pursuant to Section 7.1(c)(iv) or Section 7.1(d)(iv), but subject to the concurrent payment of the applicable Company Termination Fee or Parent by this Section 5.3Termination Fee, as the case may be, (1) if:
neither the Company nor Parent shall take any action to exempt any Person from the restrictions on “business combinations” or any similar provision contained in any applicable Takeover Law or the Constituent Documents of the Company or Parent, as applicable, otherwise cause such restrictions not to apply, and (2) the Company shall not (x) such Person terminate (or group has submitted permit the termination of (except in accordance with its terms and not related to a Superior Takeover Proposal;)), waive or amend the Company Rights Agreement,
Appears in 2 contracts
Sources: Merger Agreement (Health Net Inc), Merger Agreement (Centene Corp)
No Solicitation. (a) The Company Stockholder (in Stockholder’s capacity as such) shall not, nor and shall it not authorize or permit any of its Subsidiaries toStockholder’s (to the extent applicable) directors, nor shall it authorize (and shall use its best efforts not to permit) any affiliateofficers or other employees, officer, director or employee ofcontrolled affiliates, or any investment banker, attorney or other advisor or representative retained by Stockholder (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate, or knowingly encourage, facilitate or knowingly induce the making, submission or announcement of, any an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information or data with respect relating to or provide access to the properties of the Company or any of its Subsidiaries, or take afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other action to knowingly facilitate the making than Parent, Merger Sub or any designees of any proposal that constitutesParent or Merger Sub), or may reasonably be expected to lead toan Acquisition Proposal, any Acquisition Proposal or (iii) enter into participate or engage in discussions or negotiations with any agreement Person with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, (v) execute or enter into any agreement with respect letter of intent, memorandum of understanding or Contract contemplating or otherwise relating to any an Acquisition Proposal. Upon execution of this Agreement, the Company will Transaction.
(b) Stockholder shall immediately cease any and all existing activities, discussions or negotiations with any Person Persons conducted heretofore with respect to any Acquisition Proposal or Acquisition Transaction. From and after the date hereof until the Expiration Date, Shareholder shall as promptly as practicable (and in any event within 24 hours) (i) notify Parent of (x) any Acquisition Proposal it receives in its capacity as a stockholder of the Company, (y) any request it receives in its capacity as a stockholder of the Company for non-public information relating to the Company or its Subsidiaries that could lead to an Acquisition Proposal or an Acquisition Transaction, and (z) any inquiry it receives in its capacity as a stockholder of the Company that could lead to an Acquisition Proposal, (ii) if such Acquisition Proposal, request or inquiry is in writing, deliver to Parent a copy of such Acquisition Proposal, request or inquiry and any related draft agreements and other written material setting forth the terms and conditions of such Acquisition Proposal, and (iii) if such Acquisition Proposal, request or inquiry is oral, provide to Parent a detailed summary thereof. Stockholder shall keep Parent reasonably informed on a prompt and timely basis of the status and material details of any such Acquisition Proposal or Acquisition Transaction and with respect to any material change to the terms of any such Acquisition Proposal or Acquisition Transaction within 24 hours of any such material change.
(c) Without limiting the generality of the foregoing, Stockholder acknowledges and hereby agrees that any violation of the restrictions set forth in this Section 10 by Stockholder or any of Stockholder’s Representatives shall be deemed to be a breach of this Section 10 by Stockholder. Notwithstanding the foregoing, prior Stockholder shall not enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to the time of acceptance of Company Common Stock for payment an Acquisition Proposal unless and until this Agreement is terminated pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;terms.
Appears in 2 contracts
Sources: Support Agreement (Salesforce Com Inc), Support Agreement (ExactTarget, Inc.)
No Solicitation. (a) The Company shall notFrom the date of this Agreement until the Closing or, nor shall it permit any if earlier, the termination of this Agreement in accordance with its Subsidiaries toterms, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourageand the ESOP agree that they will not, directly or indirectly, or directly or indirectly through any officer, director, employee, investment banker, attorney, advisor, representative or agent (each a “Representative”), as applicable for any or all of them (i) solicit, initiate or knowingly encourage the submission of any inquiry, proposal or offer (whether in writing or otherwise) that constitutes, or could lead to, a proposal or offer for a merger, consolidation, business combination, recapitalization, sale of substantial assets or sale of a substantial percentage of the Shares (including without limitation by way of a public offering or private placement) involving the Company other than the Contemplated Transactions (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”); (ii) engage in negotiations or discussions concerning, or provide any non-public information to any Person relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal ; or (iii) enter into any agreement with respect to any Acquisition Proposal or agree to, approve or resolve to approve recommend any Acquisition Proposal; provided, however, that nothing contained if, at any time after the date hereof, the ESOP receives an unsolicited bona fide written Acquisition Proposal (under circumstances in which the Company and the ESOP have complied with their obligations under this Section 5.3 or 6.15) from any Person (other provision hereof shall prohibit than Purchaser), which is determined in good faith (after consultation with its financial advisors and the Company or Board of Directors of the Company’s board of directors from ) by the Trustee to be, or to be reasonably likely to result in a Superior Proposal, the ESOP may (x) taking and disclosing furnish non-public information about the Company to the Company’s stockholders a position with respect Person making such Acquisition Proposal (and its Representatives) pursuant to a tender or exchange offer by a third party pursuant to Rules 14d-9 customary confidentiality agreement not materially less restrictive of such Person than the Confidentiality Agreement and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal; provided that the Trustee shall not take any such action unless the Trustee shall have determined in good faith, after consultation with outside counsel, that the failure to take such action would be deemed to constitute a breach of its fiduciary duties under applicable Law. The Company concerning and the ESOP agree to notify Purchaser as soon as is reasonably practicable (and not later than forty-eight (48) hours) after receipt of any Acquisition Proposal or any request for non-public information in connection with an Acquisition Proposal or for access to the properties, books or records of the Company by any Person that informs the Company or the ESOP that it is considering making or has made an Acquisition Proposal. Such notice shall be made orally (and shall be confirmed in writing) and shall indicate the identity of the Person making, and the material terms and conditions of, such proposal, inquiry or contact notwithstanding any confidentiality restrictions applicable thereto (which the ESOP shall be required to obtain waiver of prior to its review of any such proposal, inquiry or contact). The ESOP shall inform Purchaser and the Company periodically of the status and content of any discussions or negotiations regarding such Acquisition Proposal with such Person and as promptly as reasonably practicable of any change in the price, structure or form of the consideration or material terms of and conditions regarding the Acquisition Proposal. Each of the Company and the ESOP will use its best efforts to prevent its Representatives from taking any action prohibited hereby if taken by the Company or the ESOP. If either of the Company or the ESOP learns of any such action taken by a Representative, the Company or the ESOP, as the case may be, will immediately advise Purchaser and provide the information specified herein. Notwithstanding anything to the contrary contained herein, (i) nothing in this Section 6.15 shall delay or otherwise affect those obligations of the parties arising under Section 6.4(a) and Section 6.7(a) hereof, and (ii) if the ESOP receives an unsolicited bona fide written Acquisition Proposal (under circumstances in which the Company and the ESOP have complied with their obligations under this Section 6.15) from any Person (other than Purchaser), which is determined in good faith (after consultation with its financial advisors and the Board of Directors of the Company) by the Trustee to be, or to be reasonably likely to result in a Superior Proposal (as defined below), provided that and at or after the time of the receipt of such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent Acquisition Proposal all of the information required conditions to the Closing set forth in Article VII (except those conditions which by their nature can only be disclosed satisfied on the Closing Date) have been or are subsequently satisfied, the ESOP shall determine (and shall provide reasonably prompt oral and written notice of such determination to Purchaser and the Company) to accept or reject such Acquisition Proposal within seven (7) Business Days following the later of the receipt of such Acquisition Proposal or satisfaction of such conditions. In the event that the ESOP determines to accept such Acquisition Proposal, the ESOP shall, on the next succeeding Business Day following the expiration of such seven (7) Business Day period, invoke the procedures set forth in Section 11.1(e), including, without limitation, by providing Purchaser with five (5) Business Days to amend the Company terms of its offer. In the event that the ESOP determines to Parent by this Section 5.3reject such Acquisition Proposal, the ESOP shall, on the next succeeding Business Day following the expiration of such seven (7) if:
(xBusiness Day period, provide notice to the Person(s) making the Acquisition Proposal of such Person or group has submitted a Superior Proposal;rejection, and shall cease all negotiations and discussions regarding an Acquisition Proposal with such Person(s).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Global Defense Technology & Systems, Inc.), Stock Purchase Agreement (Global Defense Technology & Systems, Inc.)
No Solicitation. (a) The Company shall agrees that it will not, nor shall it permit any of and will cause its Subsidiaries and its and its Subsidiaries’ officers, directors, agents, advisors and affiliates not to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, solicit, encourage or encourage, directly knowingly facilitate inquiries or indirectly, any inquiries relating proposals with respect to, or the submission ofengage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal; provided that, (ii) in the event Company receives an unsolicited Acquisition Proposal and the Board of Directors of Company concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, Company may, and may permit its Subsidiaries and its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Board of Directors of Company concludes in good faith (and based on the advice of counsel) that failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to Company than the Confidentiality Agreement. Company will immediately cease and cause to be terminated any activities, discussions or negotiations regarding any Acquisition Proposal, or in connection conducted before the date of this Agreement with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any persons other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement than Purchaser with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to enforce any confidentiality or approve similar agreement relating to an Acquisition Proposal. Company will promptly (and in any event within two business days) advise Purchaser following receipt of any Acquisition Proposal and the substance thereof (including the identity of the person making such Acquisition Proposal), and will keep Purchaser apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis.
(b) Nothing contained in this Agreement shall prevent Company or resolve its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to approve any an Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person Rules will in no way eliminate or group shall have entered into a confidentiality agreement, modify the confidentiality provisions of which shall be no more favorable effect that any action pursuant to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by Rules would otherwise have under this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (PNC Financial Services Group Inc), Merger Agreement (National City Corp)
No Solicitation. (a) The From and after the date hereof, the Company shall will not, nor and shall it permit use its reasonable best efforts not to permit, any of its officers, directors, employees, attorneys, financial advisors, agents or other representatives or those of any of its Subsidiaries to, nor shall it authorize (directly or indirectly, solicit or knowingly encourage any Takeover Proposal from any person. The Company may engage in discussions or negotiations with, and shall use furnish information concerning the Company and its best efforts not to permit) Subsidiaries, businesses, properties or assets to, any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) third party which has made an unsolicited Takeover Proposal if the Board of Directors of the Company concludes in good faith at a meeting of the Board, after having received advice from the Company's legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law. The Company will promptly (but in no case later than 24 hours) notify Newco, orally and in writing, of the receipt of any Takeover Proposal, including the material terms and conditions thereof (and any change in the material terms and conditions thereof) and the identity of the person making such Takeover Proposal, and will promptly (but in no case later than 24 hours) notify Newco, orally and in writing, of any determination by the Company's Board of Directors that a Superior Proposal (as hereinafter defined) has been made. Prior to providing any information or data to any person in connection with a Takeover Proposal pursuant to this Section 5.09, the Board of its Subsidiaries toDirectors of the Company shall receive from such person a confidentiality agreement in a customary form. As used in this Agreement, (i) solicit "Takeover Proposal" shall mean any bona fide proposal or initiate, or encourage, directly or indirectly, offer made by any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access third party prior to the properties of stockholder vote at the Company Meeting (other than a proposal or offer by Newco or any of its Subsidiaries) for a merger, consolidation or other business combination involving, or take any other action to knowingly facilitate purchase of, all or substantially all of the making assets or more than 50% of any proposal that constitutesthe voting securities of, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from , and (xii) taking and disclosing to the Company’s stockholders "Superior Proposal" shall mean a position with respect to a tender or exchange offer bona fide Takeover Proposal made by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under on terms that a majority of the Exchange Act, or (y) making such disclosure to disinterested members of the Company’s stockholders as, Board of Directors of the Company reasonably determines in the good faith judgment (in consideration of the Company’s board advice of directors, pursuant to advice from an independent legal counsel, financial advisor) is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company and to disclose to Parent all of its stockholders than the information required to be disclosed by transactions contemplated hereby (including taking into account, among other things, the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;financing thereof).
Appears in 2 contracts
Sources: Merger Agreement (Capricorn Investors Iii L P), Merger Agreement (Tcby Enterprises Inc)
No Solicitation. (a) The Company shall and its Subsidiaries will not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall the Company will direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, take any inquiries relating toaction to solicit, initiate, or knowingly encourage or facilitate the submission ofmaking of any Acquisition Proposal (including without limitation by amending, or granting any waiver under, Article NINTH of the Company Charter or Section 203 of the DGCL) or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto (except to notify such Person of the existence of the provisions of this Section 7.8), or disclose any nonpublic information or afford access to properties, books or records to any Person that has made, or to the Company’s knowledge is considering making, any Acquisition Proposal, (ii) participate or approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in any discussions principle, merger agreement, option agreement, acquisition agreement or negotiations regarding any other similar agreement relating to an Acquisition Proposal, or in connection with propose publicly or agree to do any of the foregoing relating to an Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to . Nothing contained in this Agreement shall prevent the properties Board of Directors of the Company or any of its Subsidiaries, or take any other action from (i) complying with Rule 14e-2 under the Exchange Act with regard to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (yii) making such any disclosure to if, in the Company’s stockholders ascase of this clause (ii), in the good faith judgment of the Company’s board Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided, pursuant however, that any such disclosure that relates to an Acquisition Proposal shall be deemed to be a Change in the Company Recommendation unless the Company’s Board of Directors reaffirms the Company Recommendation in such disclosure. Notwithstanding anything to the contrary in this Agreement but subject to the first sentence of Section 7.8(b), prior to (but not after) the date of the Company Stockholder Approval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information and access, but only in response to a request for information or access, to any Person making a bona fide, written Acquisition Proposal to the Board of Directors of the Company after the date hereof which was not obtained in breach of Section 5.2 or this Section 7.8 and (B) participate in discussions and negotiate with such Person or its representatives concerning any such unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A) or (B) of this sentence, (1) the Board of Directors of the Company concludes in good faith, after (x) receipt of the advice from independent of a financial advisor of nationally recognized reputation and outside legal counsel, is that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal and (y) taking into account any revisions to the terms of the Merger or this Agreement proposed by Parent after being notified pursuant to Section 5.2(b), that failure to do so would be required reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, law and (2) (x) the Company receives from the Person making such an Acquisition Proposal, prior to engaging in any of the activities described in clause (A) or (B) of this sentence, an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (i) no less favorable to the Company and (ii) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement and (y) any information provided to such Person has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Person. The Board Recommendation of Directors of the Company shall not take any of the actions referred to in the foregoing clauses (A) and (B) unless the Company shall have first delivered to Parent written notice advising Parent that the Company intends to take such action.
(b) In the event that on or approve or recommend, or propose to approve or recommend any after the date of this Agreement the Company receives an Acquisition Proposal, or enter into any agreement request for nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or to the Company’s knowledge may be considering making, an Acquisition Proposal, the Company will (A) promptly (and in no event later than twenty-four (24) hours after receipt thereof) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal or request and set forth the material terms thereof) Parent thereof, (B) keep Parent reasonably and promptly informed of the status and material terms of (including with respect to changes to the status or material terms of) any such Acquisition Proposal or request and (C) as promptly as practicable (but in no event later than twenty-four (24) hours after receipt) provide to Parent unredacted copies of all material correspondence and written materials (whether or not electronic) sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions thereof, including any proposed transaction agreements (along with all schedules and exhibits thereto and any financing commitments related thereto), as well as written summaries of any material oral communications relating to the terms and conditions thereof. The Company (x) shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any Persons with respect to any Acquisition Proposal. Upon execution of this AgreementProposal or the possibility thereof, (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, nine (9) months prior to the time date hereof in connection with its consideration of acceptance any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (z) immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company Common Stock for payment pursuant or any of its Subsidiaries. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any such Acquisition Proposal and shall enforce the provisions of any such agreement; provided that the Company shall be permitted on a confidential basis, upon written request by a relevant party thereto or without prior notice to Parent disclosing the party and the circumstances, release or waive any standstill obligations solely to the Offer, extent necessary to permit the party referred therein to submit an Acquisition Proposal to the Board of Directors of the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the on a confidential basis. The Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose provide written notice to Parent all of waiver or release of any standstill by the Company, including disclosure of the information required to be disclosed by identities of the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;parties thereto and circumstances relating thereto.
Appears in 2 contracts
Sources: Merger Agreement (Anadarko Petroleum Corp), Agreement and Plan of Merger (Occidental Petroleum Corp /De/)
No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Company shall and its subsidiaries will not, nor shall it will they authorize or permit any of its Subsidiaries totheir respective officers, nor shall it authorize (and shall use its best efforts not to permit) any affiliatedirectors, officer, director affiliates or employee of, employees or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or retained by any of its Subsidiaries them to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate, encourage or induce the making, submission of, or announcement of any Acquisition ProposalProposal (as defined below), (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, constitutes or may would reasonably be expected to lead to, any Acquisition Proposal or Proposal, (iii) enter into engage in discussions with any agreement person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or approve (v) enter into any letter of intent or resolve similar document or any contract, agreement or commitment contemplating or otherwise relating to approve any Acquisition ProposalTransaction (as defined below); provided, however, that nothing contained in this Section 5.3 or any other provision hereof 5.4 shall prohibit the Board of Directors of Company or the Company’s board of directors from (xi) taking and disclosing to complying with Rule 14d-9 or 14e-2(a) promulgated under the Company’s stockholders a position Exchange Act with respect regard to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (yii) in response to an unsolicited, bona fide written Acquisition Proposal that Company's Board of Directors reasonably concludes constitutes a Superior Offer (as defined below), engaging in discussions or participating in negotiations with and furnishing information to the party making such disclosure Acquisition Proposal to the Company’s stockholders as, extent (A) the Board of Directors of the Company determines in the good faith judgment of the Company’s board of directors, pursuant after consultation with its outside legal counsel that failure to advice from independent legal counsel, is reasonably expected to take such action would be required inconsistent with its fiduciary obligations under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify(B) (x) at least two business days prior to furnishing any such nonpublic information to, or propose entering into discussions or negotiations with, such party, Company gives Parent written notice of Company's intention to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposalfurnish nonpublic information to, or enter into discussions or negotiations with, such party and (y) Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party by or on behalf of Company, and (C) contemporaneously with furnishing any agreement with respect such nonpublic information to any Acquisition Proposal. Upon execution of this Agreementsuch party, Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any Person parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding Without limiting the foregoing, prior to it is understood that any violation of the time of acceptance restrictions set forth in this Section 5.4 by any officer, director or employee of Company Common Stock for payment pursuant to the Offeror any of its subsidiaries or any investment banker, the attorney or other advisor or representative of Company may furnish information concerning or any of its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which subsidiaries shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required deemed to be disclosed by the Company to Parent by a breach of this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;5.4
Appears in 2 contracts
Sources: Merger Agreement (Harbinger Corp), Agreement and Plan of Merger and Reorganization (Harbinger Corp)
No Solicitation. (a) The Company agrees that, prior to the Effective Time, it shall not, nor and shall it not authorize or permit any of its Company Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encouragetheir Representatives, directly or indirectly, to solicit, initiate or encourage any discussions or inquiries relating to, or the submission ofmaking of any proposal with respect to any merger, consolidation or other business combination involving the Company or the Company Subsidiaries or acquisition of 10% or more of the assets or capital stock of the Company and the Company Subsidiaries taken as a whole (a "TAKEOVER PROPOSAL") or negotiate, explore or otherwise engage in substantive discussions with any Acquisition Person (other than Buyers) with respect to any Takeover Proposal (it being understood that the passive receipt of communications from third parties shall not be deemed participation in discussions or negotiations) or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger; PROVIDED, HOWEVER, that if the Board of Directors of the Company and the Special Committee determine in good faith, after consultation with independent outside legal counsel, that prior to obtaining the Requisite Company Vote, it is necessary to do so in order to act in a manner consistent with its fiduciary duties to the Company's stockholders under applicable law, the Company may, prior to obtaining the Requisite Company Vote, in response to a Takeover Proposal, which proposal is supported by fully committed financing, was not solicited by it and which did not otherwise result from a breach of this Section 5.8, and subject to providing prior written notice of its decision to take such action to Buyers and compliance with the other requirements of this Section 5.8, (i) furnish information with respect to the Company and the Company Subsidiaries to any Person making such Takeover Proposal pursuant to a customary confidentiality agreement (as determined in good faith by the Company based on the advice of its independent outside legal counsel) and (ii) participate in any discussions or negotiations regarding any Acquisition such Takeover Proposal, or .
(b) Except in connection with any Acquisition a Superior Proposal, provided that there has been no violation of this Section 5.8, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or furnish modify, or propose publicly to any Person any information withdraw or data with respect modify, in a manner adverse to Buyers, the approval or provide access to recommendation by the properties Board of Directors of the Company or any such committee of its Subsidiariesthis Agreement, (ii) approve or recommend, or take any other action propose publicly to knowingly facilitate the making of any proposal that constitutes, approve or may reasonably be expected to lead torecommend, any Acquisition Proposal Takeover Proposal, or (iii) cause the Company to enter into any agreement with respect Acquisition Agreement.
(c) The Company shall promptly advise Buyers orally and in writing of any request for information of the type referred to in Section 5.8(a) or of any Acquisition Takeover Proposal, the material terms and conditions of such request or Takeover Proposal and the identity of the Person making such request or approve Takeover Proposal. The Company will keep Buyers informed of the status and details (including amendments or resolve to approve proposed amendments) of any Acquisition such request or Takeover Proposal; provided, that nothing .
(d) Nothing contained in this Section 5.3 or any other provision hereof 5.8 shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s its stockholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange Act, Act or (y) from making such any disclosure to the Company’s 's stockholders asif, in the good faith judgment of the Board of Directors of the Company’s board , after consultation with independent outside legal counsel and based as to legal matters on the written advice of directorsthe Company's independent outside legal consent, pursuant failure so to advice from independent legal counsel, is reasonably expected to disclose would be required inconsistent with its obligations under applicable law; PROVIDED, provided that Company may notHOWEVER, that, except as permitted contemplated by Section 5.3(b5.8(b), neither the Company nor the Board of Directors of the Company nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, its position with respect to this Agreement, the Company Board Recommendation Offer or Merger, or approve or recommend, or propose publicly to approve or recommend any Acquisition recommend, a Takeover Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Three Cities Fund Ii Lp), Agreement and Plan of Merger (Three Cities Fund Ii Lp)
No Solicitation. (a) The Company and each of the Company Subsidiaries shall, and the Company shall use commercially reasonable efforts to cause its or any of the Company Subsidiaries’ Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person or its Representatives conducted heretofore with respect to any Acquisition Proposal until such time, if any, as this Agreement is terminated in accordance with its terms. The Company shall promptly request that each Person, if any, that has executed a confidentiality agreement within the six-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries (and all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes that information) and that (to the extent provided in the terms of the applicable confidentiality agreement between such Person and the Company) such Person provide a certificate of such return or destruction to the Company. The Company shall use commercially reasonable efforts to secure all such certifications as promptly as practicable.
(b) From the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, the Company and its Subsidiaries shall not, nor and the Company shall it permit use its commercially reasonable efforts to cause its or any of its Subsidiaries’ Representatives not to, directly or indirectly, (i) initiate, solicit or take any action to knowingly facilitate or knowingly encourage the submission of an Acquisition Proposal, (ii) enter into, engage or participate in any discussions or negotiations with any Person concerning an Acquisition Proposal or the making of an Acquisition Proposal, or (iii) furnish any confidential information relating to the Company or any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not afford access to permit) any affiliatethe business, officerproperties, director assets, books or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) records of the Company or any of its Subsidiaries to, (i) solicit or initiateotherwise cooperate with, assist, facilitate or encourageencourage any effort, directly or indirectly, by any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or Person in connection with any an Acquisition Proposal or inquiries regarding an Acquisition Proposal or the making of an Acquisition Proposal, or furnish to . The Company agrees that any Person violation of the restrictions on the Company set forth in this Section 6.8 by any information or data with respect to or provide access to the properties Representative of the Company or any of its SubsidiariesSubsidiaries shall be a breach of this Section by the Company. Notwithstanding the foregoing provisions of this Section 6.8(b), prior to the Acceptance Date, the Company may furnish information to, or enter into discussions or negotiations with, any Person that has made a bona fide, unsolicited, written Acquisition Proposal if, and only to the extent that: (A) the Company Board and the Special Committee, after consulting with the Company’s and the Special Committee’s outside legal and financial advisors, have determined in good faith that such Acquisition Proposal constitutes a Superior Proposal or is reasonably expected to result in a Superior Proposal and that the failure to take any such action would be reasonably likely to result in a breach of their fiduciary duties under applicable Law; (B) such Acquisition Proposal is not the result of a breach by the Company or its Subsidiaries of this Section 6.8 and the Company and its Subsidiaries are otherwise in compliance with this Section 6.8; and (C) prior to furnishing such information or engaging in discussions or negotiations, the Company receives from such Person an executed confidentiality agreement (a copy of which shall be provided to Parent) on terms no less favorable to the Company than those contained in the Confidentiality Agreement, as determined by counsel to the Company, and all such information provided or made available to such Person (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, at or before the time it is provided or made available to such other action Person; provided, however, that the Company may enter into negotiations solely with respect to knowingly facilitate entering into such confidentiality agreement with a Person who has made a bona fide, unsolicited, written Acquisition Proposal without breaching, or being deemed to breach, this Section 6.8.
(c) From the making date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, the Company shall notify Parent in writing within one Business Day following receipt by the Company of any proposal that constitutesAcquisition Proposal, any inquiry with respect to an Acquisition Proposal, or may reasonably be expected request for access to lead toinformation or the properties, books or records of the Company or any Subsidiary by any Person that informs the Company or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. The written notice shall include all material terms and conditions of the Acquisition Proposal or such inquiry or request (iii) enter into including the identity of the Person making such Acquisition Proposal, inquiry or request), and, if in writing, shall include a copy of such Acquisition Proposal, inquiry or request. The Company shall keep Parent reasonably apprised of any agreement material modification of or amendment to such Acquisition Proposal, inquiry or request and of any developments, discussions and negotiations with respect to any Acquisition Proposal or approve or resolve to approve any such Acquisition Proposal; provided, that nothing inquiry or request. The Company shall provide Parent as soon as reasonably practicable (but in no event later than one Business Day) after receipt thereof with copies of all correspondence and other written material sent or provided to the Company from any Person in connection with such Acquisition Proposal, inquiry or request.
(d) Nothing contained in this Section 5.3 6.8 prohibits or any other provision hereof shall prohibit will be construed as prohibiting the Company or the Company’s board of directors Company Board from (xi) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange Act, Act or (yii) making such any disclosure to the Company’s stockholders asif, in the good faith judgment of the Company’s board of directorsCompany Board, pursuant to advice from independent legal after consultation with outside counsel, is reasonably expected failure to make such disclosure would be required under inconsistent with applicable lawLaw.
(e) From the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, provided that neither the Company may not, except as permitted by Section 5.3(b), withdraw Board nor the Special Committee thereof shall (i) approve or modifyrecommend, or fail to recommend rejection of, any Acquisition Proposal, (ii) fail to make, withdraw, modify or amend in a manner adverse to Parent or Merger Sub (or publicly propose to withdraw withdraw, modify or modifyamend in a manner adverse to Parent or Merger Sub) the Company Board Recommendation, or otherwise take any action or make any public statement inconsistent with, the Company Board Recommendation (any of the foregoing in clause (i) of this Section 6.8(e) or approve this clause (ii), an “Adverse Recommendation Change”), (iii) cause or recommend, or propose permit the Company to approve or recommend any Acquisition Proposal, or enter into any letter of intent, agreement in principle, term sheet, acquisition agreement, option agreement or similar agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease (iv) grant any existing activities, discussions waiver or negotiations with release under any Person conducted heretofore standstill or similar agreement with respect to any class of equity securities of the foregoingCompany or any of its Subsidiaries or under the Rights Agreement, (v) take any action to render the restrictions on business combinations set forth in Section 203 of the DGCL inapplicable to any transaction (other than the Transactions), or (vi) cooperate with any Person other than Parent or Merger Sub with respect to the preparation and filing of documents under Ohio Revised Code Section 1707.041. Notwithstanding the foregoing, prior to the time foregoing provisions of acceptance of Company Common Stock for payment pursuant to the Offerthis Section 6.8(e), the Company Board may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in make an Adverse Recommendation Change if the Exchange Act Company Board and the rules promulgated thereunderSpecial Committee have concluded in good faith, after consultation with the Company’s and Special Committee’s outside financial and legal advisors, that failure of the Company Board to effect such Adverse Recommendation Change would be reasonably likely to result in a breach of their fiduciary duties under applicable Law.
(f) Neither the Company Board nor the Special Committee shall make an Adverse Recommendation Change or cause the Company to exercise its right to terminate this Agreement pursuant to Section 8.1(e)(ii) unless: (i) the Company promptly (i.e., within one Business Day) after a meeting of the Company Board and may negotiate a meeting of the Special Committee provides written notice (“Notice of Adverse Recommendation”) advising Parent that the Company Board and participate the Special Committee intend to take any such action and specifying the reasons therefor, including, if applicable, (A) the material terms and conditions of a Superior Proposal, (B) the identity of the Person making such Superior Proposal and (C) the terms and conditions of any proposed agreement relating to such Superior Proposal; (ii) during a period commencing on the date that the Notice of Adverse Recommendation is deemed to be received by Parent in discussions accordance with Section 9.1 and negotiations ending at 5:00 p.m., Eastern Time, on the third Business Day thereafter (such three-Business Day period, the “Notice Period”), the Company supplies all information requested by Parent, otherwise cooperates and negotiates exclusively with Parent in good faith to make such Person or group whether or not such Person or group has had previous discussions or negotiations adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with the Company concerning Board Recommendation and not make such Adverse Recommendation Change; (iii) following expiration of the Notice Period, the Company Board and the Special Committee, after consultation with the Company’s and Special Committee’s outside financial and legal advisors, determine in good faith (after taking into account any adjustments to the terms and conditions of this Agreement) that failure of the Company Board to effect such Adverse Recommendation Change would be reasonably likely to result in a breach of their fiduciary duties under applicable Law; and (iv) if required by the terms of Section 8.3(a), the Company has paid to Parent the fee described in Section 8.3(a). Any modification to the terms and conditions of a Superior Proposal (as defined below)Proposal, provided that such Person if any, or group shall have entered into a confidentiality proposed agreement, the confidentiality provisions of which shall be no more favorable if any, relating to such third party than Superior Proposal from those provided for described in the Confidentiality Agreement (provided that such confidentiality agreement must permit a Notice of Adverse Recommendation shall require the Company to disclose to Parent all deliver a new Notice of Adverse Recommendation and shall trigger a new Notice Period commencing on the information required to be disclosed date that the new Notice of Adverse Recommendation is received by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Parent.
Appears in 2 contracts
Sources: Merger Agreement (Hawk Corp), Merger Agreement (Carlisle Companies Inc)
No Solicitation. (a) The Company Seller shall not, nor shall it permit any of its Subsidiaries to, not nor shall it authorize (and shall use its best efforts not to permit) any affiliateAffiliate, officer, director director, manager or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”"REPRESENTATIVES") of the Company or any of its Subsidiaries to, Seller to (i) solicit or initiate, or encourage, directly or indirectly, initiate any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any non-public information or data with respect to or provide access to the properties of the Company or any of its SubsidiariesSeller, or take any other action in order to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any constitutes an Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.3 5.04 or any other provision hereof shall prohibit the Company Seller or the Company’s Seller's board of directors from (x) taking and disclosing to the Company’s Seller's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company Seller may not, except as permitted by Section 5.3(b5.04(b), withdraw or modify, or propose to withdraw or modify, the Company Seller Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company Seller will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the OfferClosing Date, the Company Seller may furnish nonpublic information concerning or data concerning, or provide access to, its businesses or its Subsidiariesbusinesses, properties or assets to any Person or “"group” " (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below)an Acquisition Proposal, provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company Seller to disclose to Parent all of the information required to be disclosed by the Company Seller to Parent by this Section 5.35.04) if:
(xi) such Person or group has submitted an Acquisition Proposal that the Board has determined in good faith is, or would reasonably be expected to result in, a Superior Proposal (as defined below);
(ii) Seller's board of directors has determined in good faith, after consultation with outside legal counsel to Seller, such action is required to discharge the board's fiduciary duties to Seller's stockholders under applicable Law; and
(iii) Seller has notified Parent in writing of its intention to engage in such discussions or negotiations or to provide such confidential information not less than the third (3rd) Business Day prior to so doing. Seller will promptly (but in no case later than twenty-four (24) hours after receipt thereof) notify Parent in writing of the existence of any proposal, discussion, negotiation or inquiry received by Seller regarding any Acquisition Proposal, and Seller will promptly (but in no case later than twenty-four (24) hours after receipt thereof) communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive regarding any Acquisition Proposal (and will promptly provide to Parent copies of any written materials (including e-mails) received by Seller or its Representatives in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. Seller will promptly provide to Parent any non-public information concerning Seller provided to any other Person in connection with any Acquisition Proposal which was not previously provided to Parent. Seller will, when reasonably requested by Parent, keep Parent informed on a prompt basis of the status and details of any such Acquisition Proposal and of any amendments or proposed amendments to any Acquisition Proposal and of the status of any discussions or negotiations relating to any Acquisition Proposal.
(b) Except as set forth in this Section 5.04(b), neither the board of directors of Seller nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Acquisition Sub, the Seller Board Recommendation, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with Section 5.04(a)). Notwithstanding the foregoing, subject to compliance with the provisions of this Section 5.04, prior to the Closing Date, Seller's board of directors, after consultation with outside legal counsel, may withdraw or modify the Seller Board Recommendation, approve or recommend a Superior Proposal;, or propose to enter into or enter into an agreement with respect to a Superior Proposal, if the board determines in good faith after consultation with outside legal counsel that, such action would otherwise be required to discharge the board's fiduciary duties to Seller's stockholders under applicable Law in the absence of the limitations on such action under this Agreement, provided that in each case, Seller has given Parent written notice at least three (3) Business Days in advance of such action that the board of directors of Seller has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal. Notwithstanding any provision of this Agreement, the board of directors of Seller shall not be prohibited from making any disclosure that, in the good faith judgment of the board (made after consultation with outside legal counsel), is necessary to satisfy its fiduciary duty of disclosure.
(c) Nothing in this Section 5.04, and no action taken by the board of directors of Seller pursuant to this Section 5.04, will (i) permit Seller to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal for as long as this Agreement remains in effect, except as expressly set forth herein, or (ii) affect in any manner any other obligation of Seller under this Agreement.
(d) For purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any bona fide offer, proposal or other indication of interest regarding any of the following (other than the transactions provided for in this Agreement involving Seller): (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction involving Seller; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or a significant portion of the assets or non-cash assets of Seller (other than the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Claim), taken as a whole, in a single transaction or series of related transactions; (iii) any purchase of or tender offer or exchange offer for ten percent (10%) percent or more of the outstanding shares of capital stock of Seller, or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. For purposes of this Agreement, "SUPERIOR PROPOSAL" shall mean an Acquisition Proposal not solicited in violation of this Agreement that is on terms which the board of directors of Seller determines in good faith to be more favorable from a financial point of view to Seller or Seller's stockholders, as the case may be, than terms of the transactions contemplated by this Agreement (after consultation with Seller's outside financial advisor), and with respect to which the board of directors of Seller has determined in good faith (after consultation with Seller's outside financial advisor) that financing, to the extent required, is reasonably capable of being obtained; provided, however, that for purposes of this definition, "Acquisition Proposal" shall be deemed to refer only to a transaction involving a majority of the outstanding voting securities of Seller or a majority, substantially all, or all of the assets or non-cash assets of Seller (other than the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Claim).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Animas Corp), Asset Purchase Agreement (Cygnus Inc /De/)
No Solicitation. The Shareholder hereby agrees that during the term of this Agreement (a) The Company as contemplated in Section 8) the Shareholder shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or knowingly instruct any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative retained by it to (collectively, “Representatives”) of the Company or any of on its Subsidiaries tobehalf), (ia) solicit or initiate, solicit, knowingly encourage or encourageknowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (b) engage, communicate or participate in any negotiations with any person (other than Purchaser, Merger Subs or the Company) concerning any Acquisition Proposal after becoming aware that the person has made or is considering making an Acquisition Proposal or (c) participate in, directly or indirectly, any inquiries relating toa “solicitation” of “proxies” (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or the submission ofknowingly and intentionally seek to influence any person to vote, any Acquisition Proposal, shares of Company Capital Stock (iix) participate against the adoption or approval of the Merger Agreement and the Mergers or (y) in any discussions or negotiations regarding favor of any Acquisition Proposal, Proposal or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may would reasonably be expected to lead toto an Acquisition Proposal, unless in the case of clause (c) above, the Shareholder is a director of the Company’s Board of Directors or an officer of the Company and the Company’s Board of Directors has effected a Recommendation Change (as defined in the Merger Agreement), in accordance with the terms of the Merger Agreement, and in such case, the Shareholder’s activities are solely in his or her capacity as a director or officer of the Company. The Shareholder agrees immediately to cease and cause to be terminated any Acquisition Proposal activities, discussions or negotiations conducted before the date of this Agreement with any persons (iiiother than the Company, Purchaser, Merger Subs and any of their respective representatives) enter into any agreement with respect to any Acquisition Proposal and will take all reasonably necessary steps to inform any investment banker, financial advisor, attorney, accountant or approve or resolve other representative retained by the Shareholder in connection with the Mergers of the obligations undertaken by the Shareholder pursuant to approve any Acquisition Proposal; provided, that nothing this Section 5. Nothing contained in this Section 5.3 or 5 shall prevent any other provision hereof shall prohibit officer of the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment member of the Company’s board Board of directors, pursuant to advice Directors from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except discharging his or her fiduciary duties solely in his or her capacity as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, an officer of the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any a member of the foregoing. Notwithstanding the foregoing, prior to the time Company’s Board of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Directors.
Appears in 2 contracts
Sources: Support Agreement (TriState Capital Holdings, Inc.), Support Agreement (T-Viii Pubopps Lp)
No Solicitation. (a) The Company shall agrees that it will not, nor shall it permit directly or indirectly through any of its Subsidiaries toofficer, nor shall it authorize (and shall use its best efforts not to permit) any subsidiary, affiliate, officerdirector, director or employee ofemployee, or any investment bankerstockholder, attorney representative, agent or other advisor person, (i) seek, initiate, solicit or representative encourage any Person to make an Acquisition Proposal, (collectivelyii) engage in negotiations or discussions concerning an Acquisition Proposal with any person or group, “Representatives”(iii) disclose any non-public information relating to the Company or give access to the properties, employees, books or records of the Company or any of its Subsidiaries to, (i) solicit subsidiaries to any person or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or group in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iiiiv) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 recommend or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose agree to approve or recommend any Acquisition Proposal; provided that nothing herein shall prevent the Board of Directors from (a) furnishing information to any person that has made an Acquisition Proposal not solicited in violation of this paragraph or (b) subject to the other provisions of this paragraph, entering into or participating in discussions or negotiations concerning an Acquisition Proposal not solicited in violation of this paragraph so long as, in any case, (x) the Board of Directors or the Special Committee shall have concluded in good faith, after receiving and considering the advice of its outside legal counsel, that failing to participate in such discussions or negotiations or furnishing such information would cause the Board of Directors or the Special Committee to be in breach of its respective fiduciary responsibilities to the Company Stockholders under applicable law, and (y) prior to participating in such discussions or negotiations or furnishing any such information, the Company and the party making such offer agrees to a confidentiality agreement on terms that are, in the aggregate, no less favorable to the Company than those of the Confidentiality Agreement to which Sponsor is a party (other than the standstill provisions thereof) and Merger Subsidiary is given concurrent or advance written notice thereof unless the Board of Directors or the Special Committee shall have concluded in good faith, after receiving and considering the advice of its outside counsel, that doing so would cause it to be in breach of its respective fiduciary responsibilities to the Company Stockholders under applicable law. The Board of Directors or the Special Committee may (x) fail to make, withdraw, or enter into modify in a manner adverse to Merger Subsidiary its recommendation to its stockholders referred to in Section 6.03 hereof, (y) take and disclose to the Company Stockholders a position contemplated by Rule 14e-2 under the 1934 Act or otherwise complying with its disclosure obligations and/or (z) take any agreement non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in each case only if the Board of Directors or the Special Committee determines, in good faith after consultation with outside legal counsel to the Company, that such action is required in the exercise of its respective fiduciary duties under applicable law.
(b) The Company shall notify Merger Subsidiary in writing no later than the end of the next business day after receipt thereof of the receipt of any Acquisition Proposal (including a copy thereof if in writing), the terms and conditions of such Acquisition Proposal and the identity of the person making it. The Company also shall promptly notify Merger Subsidiary no later than the end of the next Business Day of any change to or modification of such Acquisition Proposal.
(c) The Company shall, and shall cause its Subsidiaries and the advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal. Upon execution Proposal and shall use commercially reasonable efforts to cause any such Party (or its agents or advisors) in possession of this Agreement, confidential information about the Company will immediately cease any existing activities, discussions that was furnished by or negotiations with any Person conducted heretofore with respect to any on behalf of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent return or destroy all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;information.
Appears in 2 contracts
Sources: Recapitalization Agreement (Mascotech Inc), Recapitalization Agreement (Mascotech Inc)
No Solicitation. (a) The Company shall not, nor shall it permit any officer or director of the Company or any officer or director of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to or permit) , any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectivelyof, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit solicit, initiate or initiate, or encourage, directly or indirectly, any inquiries relating to, or encourage the submission of, any Acquisition ProposalTakeover Proposal (as defined below), (ii) except as provided in Section 5.4(b), enter into any agreement with respect to any Takeover Proposal or (iii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any non-public information or data with respect to or provide access to the properties of the Company or any of its SubsidiariesCompany, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Takeover Proposal; provided, however, that nothing contained prior to the acceptance for payment of shares of Common Stock pursuant to the Offer, to the extent required by the fiduciary obligations of the Company Board, as determined in this good faith by a majority of the members thereof based on the written advice of outside counsel, the Company may, in response to an unsolicited written bona fide Takeover Proposal that contains no financing condition from a person that the Company Board reasonably believes has the financial ability to make a Superior Proposal (as defined in Section 5.3 5.4(b)) subject to compliance with Section 5.4(c), furnish non-public information with respect to the Company to such person pursuant to a customary confidentiality agreement and participate in discussions or negotiations with such person. Without limiting the foregoing, it is understood that any other provision hereof shall prohibit violation of the restrictions set forth in the preceding sentence by any executive officer or director of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.4(a) by the Company’s board . For purposes of directors from (x) taking and disclosing this Agreement, "Takeover Proposal" means any written ----------------- proposal that contains no financing condition for a merger or other business combination involving the Company or any of its Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of the Company’s stockholders a position with respect to a tender equity securities of the Company or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment more than 20% of the Company’s board of directors's consolidated total assets, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that other than the Transactions.
(b) Neither the Company may not, except as permitted by Section 5.3(b), Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by the Company Board Recommendation or any such committee of the Offer, this Agreement or the Merger or (ii) approve or recommend, or propose to approve or recommend recommend, any Acquisition Takeover Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior the Company Board, to the time of acceptance of Company Common Stock for payment pursuant to extent required by the Offerfiduciary obligations thereof, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined determined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning good faith by a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all majority of the information required to be disclosed by members thereof based on the Company to Parent by this Section 5.3) if:
written advice of outside counsel, may approve or recommend (x) such Person and, in connection therewith withdraw or group has submitted a Superior Proposal;modify its approval or recommendation of
Appears in 2 contracts
Sources: Merger Agreement (Hain Food Group Inc), Merger Agreement (Hain Food Group Inc)
No Solicitation. (a) The From the date of this Agreement until the Closing Date, the Company shall agrees that it will not, nor shall it permit directly or indirectly through any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee ofSubsidiary, or any investment bankerAffiliate, attorney director, employee, stockholder, representative, agent or other advisor person, (i) seek, initiate, solicit or representative encourage any Person to make an Acquisition Proposal, (collectivelyii) engage in negotiations or discussions concerning an Acquisition Proposal with any person or group, “Representatives”(iii) disclose any non-public information relating to the Company or give access to the properties, employees, books or records of the Company or any of its Subsidiaries to, (i) solicit subsidiaries to any person or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or group in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iiiiv) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 recommend or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose agree to approve or recommend any Acquisition Proposal; provided that nothing herein shall prevent the Board of Directors or a committee thereof from (A) furnishing information to any person that has made an Acquisition Proposal not solicited in violation of this paragraph or (B) subject to the other provisions of this paragraph, entering into or enter into participating in discussions or negotiations concerning an Acquisition Proposal not solicited in violation of this paragraph so long as, in any case, (x) the Board of Directors or such committee shall have concluded in good faith (after receiving and considering the advice of its outside legal counsel) that failing to participate in such discussions or negotiations or furnishing such information would cause the Board of Directors or such committee to be in breach of its fiduciary duties to the Company Shareholders under applicable law, and (y) prior to participating in such discussions or negotiations or furnishing any such information, the Company and the party making such offer agrees to a confidentiality agreement on terms that are, in the aggregate, no less favorable to the Company than those of the Confidentiality Agreement (other than the standstill provisions thereof) and the New Investor is given concurrent or advance written no- tice ▇▇▇reof unless the Board of Directors or such committee shall have concluded in good faith, after receiving and considering the advice of its outside counsel, that doing so would cause it to be in breach of its fiduciary responsibilities to the Company Shareholders under applicable law. The Board of Directors or such committee may (x) fail to make, withdraw or modify in a manner adverse to the New Investor its recommendation to its stockholders referred to in Section 5.03, (y) take and disclose to the Company Shareholders a position contemplated by Rule 14e-2 under the 1934 Act or otherwise complying with its disclosure obligations and/or (z) take any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in the case of clause (x) or (y) only if the Board of Directors or such committee determines, in good faith after consultation with outside legal counsel to the Company, that such action is consistent with the exercise of its fiduciary duties under applicable law.
(b) The Company shall notify the New Investor in writing no later than the end of the next business day after receipt thereof of the receipt of any Acquisition Proposal (including a copy thereof if in writing), the terms and conditions of such Acquisition Proposal and the identity of the person making it. The Company also shall promptly notify the New Investor no later than the end of the next Business Day of any change to or modification of such Acquisition Proposal.
(c) The Company shall, and shall cause its Subsidiaries and the advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal. Upon execution Proposal and shall use commercially reasonable efforts to cause any such Party (or its agents or advisors) in possession of this Agreement, confidential information about the Company will immediately cease any existing activities, discussions that was furnished by or negotiations with any Person conducted heretofore with respect to any on behalf of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent return or destroy all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;information.
Appears in 2 contracts
Sources: Share Purchase Agreement (Cypress Capital Advisors LLC), Share Purchase Agreement (Collins & Aikman Corp)
No Solicitation. (a) The Upon the earlier to occur of the approval of this Agreement or the Icahn DIP Facility, the U.S. Debtors agree to withdraw their motion to sell assets of the U.S. Debtors under Section 363 of the U.S. Bankruptcy Code, and further agree not to refile any such motion except as permitted by the Icahn DIP Facility and not to file any similar motion with respect to the Canadian Subsidiaries in the Canadian Court except as permitted by this Agreement and the Icahn DIP Facility. Nothing in this Section 4.12(a) shall preclude the Company from soliciting or proposing Competing Offers prior to the Determination Date, as may otherwise be permitted hereunder.
(b) Prior to the Determination Date the Company shall notnot take any efforts in connection with developing a competing plan of reorganization or soliciting a Superior Proposal, nor except in accordance with the terms of this Agreement, including, without limitation, Section 4.9, Exhibit A-2, and the Bidding Procedures Order.
(c) After the Determination Date, the Company shall it permit advise Purchaser of any request for information with respect to any Acquisition Proposal or of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee ofAcquisition Proposal, or any investment bankerinquiry, attorney proposal, discussions or other advisor negotiation with respect to any Acquisition Proposal, the terms and conditions of such request, Acquisition Proposal, inquiry, proposal, discussion or representative negotiation and the Company shall, within one (collectively1) calendar day of the receipt thereof, “Representatives”) promptly provide to Purchaser copies of any written materials received by the Company or any of its Subsidiaries toin connection with any of the foregoing, (i) solicit and the identity of the Person making any such Acquisition Proposal or initiatesuch request, inquiry or encourage, directly proposal or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in with whom any discussions or negotiations regarding are taking place. The Company shall keep Purchaser fully informed of the status and material details (including amendments or proposed amendments) of any such request or Acquisition Proposal and keep Purchaser fully informed as to the material details of any information requested of or provided by the Company and as to the details of all discussions or negotiations with respect to any such request, Acquisition Proposal, inquiry or proposal, and shall provide to Purchaser within one (1) calendar day of receipt thereof all written materials received by the Company with respect thereto. The Company shall promptly provide to Purchaser any non-public information concerning the Company provided to any other Person in connection with any Acquisition Proposal, or furnish which was not previously provided to any Person any information or data with respect to or provide access Purchaser.
(d) Notwithstanding anything herein to the properties contrary, if, on the Determination Date, the Company and the other U.S. Debtors select this Agreement from among any or all Competing Offers, then beginning on the Determination Date, and until the earlier of (i) the Closing Date or (ii) termination of this Agreement in accordance with its terms, the Company shall not, without the prior written consent of the Company or Purchaser, and shall not permit any of its Subsidiaries, nor any of its or their officers, directors, shareholders, employees, investment bankers, attorneys, or any other representative to, and none of them shall, without the prior written consent of the Purchaser, directly or indirectly, (A) solicit, engage in discussions or negotiate with any Person (whether or not such discussions or negotiations are initiated by the Company), or take any other action intended or designed to knowingly facilitate the making efforts of any proposal that constitutesPerson, other than Purchaser or may reasonably be expected its Affiliates, relating to lead toan Acquisition Proposal, (B) provide information with respect to the Company to any Person, other than Purchaser or its Affiliates, relating to a possible Acquisition Proposal by any Person, other than Purchaser or its Affiliates, (iiiC) enter into any an agreement with respect to any Acquisition Proposal Person, other than Purchaser or approve or resolve to approve any Acquisition Proposal; providedits Affiliates, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders providing for a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any possible Acquisition Proposal, or enter into (D) make or authorize any agreement with respect to statement, recommendation or solicitation in support of any possible Acquisition Proposal. Upon execution of this AgreementProposal by any Person, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses other than by Purchaser or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Affiliates.
Appears in 2 contracts
Sources: Investment Agreement (Icahn Carl C Et Al), Investment Agreement (Philip Services Corp/De)
No Solicitation. (ai) The Company Seller and its subsidiaries and their respective officers, directors, employees, representatives, agents or affiliates shall cease any discussion or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). The Seller shall not, nor shall it permit any of its Subsidiaries to, nor shall and it authorize (and shall use its best efforts to cause its officers, directors, employees, agents or affiliates not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(A) solicit, initiate or knowingly encourage (including by way of furnishing information), or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or knowingly take any other action to knowingly facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined in this Section 5(h)), or (iiiB) enter into participate in any agreement with respect to any Acquisition Proposal discussions or approve or resolve to approve negotiations regarding any Acquisition Proposal; provided, however, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit if the Company or the Company’s board of directors from (x) taking of the Seller determines in good faith, after consultation with, and disclosing in part based on the advice of outside counsel, that it is required to do so in order to comply with its fiduciary duties to the CompanySeller’s stockholders a position under applicable law, the Seller may, in response to an unsolicited Acquisition Proposal, and subject to compliance with Section 5(h)(iii), (X) furnish information with respect to the Seller to any Person making such unsolicited Acquisition Proposal pursuant to an executed confidentiality agreement with such Person, and (Y) participate in discussions or negotiations regarding such Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any bona fide proposal or offer from any Person relating to any merger, consolidation, business combination, sale or a significant amount of assets outside of the Ordinary Course of Business, sale of shares of capital stock outside of the Ordinary Course of Business, tender or exchange offer or similar transaction involving the Division, the Division Subsidiaries or the Acquired Assets; provided however, for the avoidance of doubt, that “Acquisition Proposal” shall not include any joint venture agreement entered into by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actany of Seller, its Napster Division, or those of its Subsidiaries that are included in its Napster Division or any merger, consolidation, business combination, sale of a significant amount of assets, sale of shares of capital stock, tender or exchange offer of similar transaction involving Seller or any of those Subsidiaries that are included in Seller’s Napster Division or any Excluded Asset (yi) making such disclosure which does not involve any of the Acquired Assets and (ii) the consummation of which will in no way prevent or impair in any material respect the Transaction or impair the ability of Buyer to operate the Division in a manner consistent with its operation by Seller prior to the Company’s stockholders asClosing Date.
(ii) Except as set forth in this Section 5(h), in neither the good faith judgment board of directors of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), Seller nor any committee thereof shall (A) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Buyer, the Company Board Recommendation approval or recommendation by such board of directors or such committee of the Transaction or this Agreement, (B) approve or recommend, or propose to approve or recommend recommend, any Acquisition Proposal, or (C) cause the Seller to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) with respect to any Acquisition Proposal. Upon execution Notwithstanding the foregoing, in the event that the board of directors of the Seller determines in good faith, after consultation with and based in part on the advice of outside counsel, that it is required to do so in order to comply with its fiduciary duties to the Seller’s stockholders under applicable law, the board of directors of the Seller may (subject to the following sentences) (X) withdraw or modify its approval or recommendation of the Transaction and this Agreement (or decide not to recommend it before the Definitive Proxy Materials are sent to the Seller’s stockholders) only at a time that is after the fifth business day following Buyer’s receipt of written notice advising Buyer that the board of directors of the Seller has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal or (Y) terminate this Agreement by exercising its termination right under Section 9(a)(vii). In addition, if the Seller proposes to terminate this Agreement pursuant to Section 9(a)(vii), it shall pay to Buyer the Termination Fee (as defined in Section 10(k)) at the time prescribed in Section 10(k). For purpose of this Agreement, a “Superior Proposal” shall mean an Acquisition Proposal made by a third party after the Company will immediately cease any existing activitiesSigning Date which, discussions or negotiations with any Person conducted heretofore with respect to any in the good faith judgment of the foregoing. Notwithstanding board of directors of the foregoingSeller, prior taking into account, to the time extent deemed appropriate by the board of acceptance of Company Common Stock for payment pursuant to the Offerdirectors, the Company may furnish information concerning its businesses or its Subsidiariesvarious legal, properties or assets to any Person or “group” (as defined in financial and regulatory aspects of the Exchange Act proposal and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with Person making such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below)proposal, provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted if accepted, is reasonably likely to be consummated, and (y) if consummated, is reasonably likely to result in a Superior Proposal;more favorable transaction than the Transaction contemplated hereunder considering, among other things, and to the extent deemed appropriate in good faith by the Board of Directors, the long-term prospects and interests of the Seller and its stockholders and other relevant constituencies.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Roxio Inc), Asset Purchase Agreement (Sonic Solutions/Ca/)
No Solicitation. (a) The Company OrthAlliance agrees that it and its Subsidiaries, officers, directors, employees, representatives, consultants, investment bankers, attorneys, accountants and agents shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) encourage, solicit, initiate, facilitate, entertain or the submission of, accept any Acquisition Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal or enter into any arrangement, understanding or agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (iii) propose or make any Acquisition Proposal to any Person other than OCA and OCA Merger Sub, (iv) participate in any way in discussions or negotiations regarding any Acquisition Proposalwith, or furnish or disclose any information to, any Person (other than OCA and OCA Merger Sub) in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (yv) making such disclosure to the Company’s stockholders asauthorize or permit its Subsidiaries, in the good faith judgment of the Company’s board of officers, directors, pursuant employees, representatives, consultants, investment bankers, attorneys, accountants and agents to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to do any of the foregoing. Notwithstanding ; provided, however, that OrthAlliance, in response to an unsolicited, bona fide, written Acquisition Proposal, may, after giving notice to OCA and without limiting OrthAlliance's obligations under Section 8.4, take one or more of the foregoing, prior following actions if the Board of Directors of OrthAlliance determines in good faith that the failure to take such action or actions would violate the time fiduciary obligations of acceptance such Board of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses Directors under applicable law: (1) participate or its Subsidiaries, properties or assets to any Person or “group” (as defined engage in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Person making such Acquisition Proposal regarding such unsolicited, bona fide, written Acquisition Proposal, (2) provide or cause to be provided information to the Person making such Acquisition Proposal (as defined below), provided that such Person or group shall have entered into pursuant to a confidentiality agreement, the confidentiality provisions of which shall be no agreement with terms not more favorable to such third party than those provided for in the terms of the Confidentiality Agreement between OrthAlliance and OCA), and (provided that such confidentiality agreement must 3) authorize and permit the Company its officers, directors, employees, representatives, investment bankers, attorneys, accountants, financial advisors and agents to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;take
Appears in 2 contracts
Sources: Merger Agreement (Orthodontic Centers of America Inc /De/), Merger Agreement (Orthalliance Inc)
No Solicitation. During the Pre-Closing Period:
(a) The Company Parent shall notnot directly or indirectly, nor and shall it not authorize or permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, Parent Subsidiary or any investment banker, attorney Representative of Parent directly or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries indirectly to, (i) solicit or solicit, initiate, encourage or encourageinduce the making, directly submission or indirectly, announcement of any inquiries relating to, Acquisition Proposal or the submission of, take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) participate furnish any information regarding Parent or any Parent Subsidiary to any Person in any discussions connection with or negotiations regarding any in response to an Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into continue or engage in discussions with any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement Person with respect to any Acquisition Proposal. Upon execution , (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Parent Acquisition Transaction; provided, however, that this AgreementSection 5.4(a) shall not prohibit Parent from furnishing information regarding Parent or any Parent Subsidiary to, or entering into discussions with, any Person in response to an unsolicited bona fide written proposed Acquisition Proposal submitted by such Person if (1) the Board of Directors of Parent concludes in good faith, based upon the written advice of its financial advisor, that such Acquisition Proposal could reasonably be expected to result in a transaction that is more favorable to Parent's shareholders than the Merger (any such more favorable unsolicited bona fide written Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), (2) the Board of Directors of Parent concludes in good faith, based upon the written advice of its outside legal counsel, that such action is required in order for the Board of Directors of Parent to comply with its fiduciary obligations to Parent's shareholders under applicable law, (3) prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives the Company will immediately cease written notice of the identity of such Person and of Parent's intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all written and oral information furnished to such Person by or on behalf of Parent, and (4) prior to furnishing any existing activitiessuch information to such Person, discussions or negotiations with Parent furnishes such information to the Company (to the extent such information has not been previously furnished by Parent to the Company). Without limiting the generality of the foregoing, Parent acknowledges and agrees that any Person conducted heretofore with respect to violation of any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined restrictions set forth in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group preceding sentence by any Representative of Parent, whether or not such Person or group has had previous discussions or negotiations with Representative is purporting to act on behalf of Parent, shall be deemed to constitute a breach of this Section 5.4 by Parent.
(b) Parent shall promptly advise the Company concerning a Superior orally and in writing of any Acquisition Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, including the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all identity of the information required Person making or submitting such Acquisition Proposal and the term thereof) that is made or submitted by any Person during the Pre-Closing Period.
(c) Parent shall immediately cease and cause to be disclosed by terminated any discussions existing as of the Company date of this Agreement with any Person that relate to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior any Acquisition Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Andataco), Merger Agreement (Ipl Systems Inc)
No Solicitation. (a) The Company Subject to Section 8 hereof, prior to the Termination Date, such Shareholder shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use cause its best efforts respective Representatives not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, initiate any inquiries relating negotiations with any Person with respect to, or provide any non-public information or data concerning the submission ofCompany or their respective Subsidiaries, to any Person relating to a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction or afford to any Person access to the business, properties, assets or personnel of any Group Company or any of their respective Subsidiaries in connection with a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction, (ii) participate 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 discussions or negotiations regarding any Acquisition other agreement relating to a Business Combination Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal or a Specified Other Transaction, (iii) enter into grant any waiver, amendment or release under any confidentiality agreement with respect or the anti-takeover Laws of any state relating to any a Business Combination Proposal, an Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange ActSpecified Other Transaction, or (yiv) making otherwise knowingly facilitate any such disclosure to the Company’s stockholders asinquiries, in the good faith judgment of the Company’s board of directorsproposals, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modifydiscussions, or propose negotiations or any effort or attempt by any Person to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition make a Business Combination Proposal, an Acquisition Proposal or enter into any agreement with respect to any Acquisition Proposala Specified Other Transaction. Upon Such Shareholder also agrees that immediately following the execution of this AgreementAgreement such Shareholder shall, the Company will and shall cause its Representatives to, immediately cease any and all existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Business Combination Proposal, Acquisition Proposal or a Specified Other Transaction. Such Shareholder shall promptly (and in any event within two (2) Business Days) notify, in writing, SPAC of the foregoingreceipt of any inquiry, proposal, offer or request for information received after the date hereof that constitutes, or could reasonably be expected to result in or lead to, a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction which notice shall include a summary of the material terms of such inquiry, proposal or offer (and shall include any other documents evidencing or specifying the terms of such proposal, offer, inquiry or request). Such Shareholder shall promptly (and in any event within twenty-four (24) hours) keep SPAC reasonably informed of any material developments with respect to any such inquiry, proposal, offer, request for information or a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction (in each case, including any material changes thereto). Notwithstanding the foregoing, prior anything in this Agreement to the time contrary, (i) such Shareholder shall not be responsible for the actions of acceptance the Company or the Company Board (or any 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 (collectively, the “Company Common Stock for payment pursuant Related Parties”), (ii) such Shareholder makes no representations or warranties with respect to the Offer, actions of any of the Company may furnish information concerning its businesses or its SubsidiariesRelated Parties, properties or assets to and (iii) any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed breach by the Company to Parent by of its obligations under Section 8.6 (Business Combination Proposal, Acquisition Proposals and Specified Other Transactions) of the Business Combination Agreement shall not be considered a breach of this Section 5.36(a) if:
(x) it being understood that, for the avoidance of doubt, such Person Shareholder or group has submitted a Superior Proposal;his, her or its Representatives shall remain responsible for any breach by such Shareholder or his, her or its Representatives of this Section 6(a)).
Appears in 2 contracts
Sources: Shareholder Support Agreement (Above Food Ingredients Inc.), Shareholder Support Agreement (Bite Acquisition Corp.)
No Solicitation. (a) The From the date hereof until the termination hereof, Company shall notwill not and will cause its Subsidiaries and the officers, nor shall it permit directors, employees, investment bankers, consultants and other agents of Company and its Subsidiaries not to, directly or indirectly, take any action to solicit, initiate, encourage or facilitate the making of any Acquisition Proposal or any inquiry with respect thereto or engage in discussions or negotiations with any person with respect thereto, or disclose any non-public information relating to Company or any of its Subsidiaries toor afford access to the properties, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director books or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) records of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal person that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve has made any Acquisition Proposal; provided, provided that nothing contained in this Section 5.3 5.05 shall prevent Company from furnishing non-public information to, or entering into discussions or negotiations with, any person in connection with an unsolicited bona fide Acquisition Proposal received from such person that the Company Board determines in good faith is reasonably likely to lead to a Superior Proposal, so long as prior to furnishing non-public information to, or entering into discussions or negotiations with, such person, Company receives from such person an executed confidentiality agreement with terms no less favorable to Company than those contained in the Parent Confidentiality Agreement; provided, further that nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14e-2 or 14d-9 under the 1934 Act with regard to an Acquisition Proposal. Company will promptly notify (which notice shall be provided orally and in writing and shall identify the person making such Acquisition Proposal and set forth the material terms thereof) Parent, within 24 hours after receipt of any Acquisition Proposal or any other provision hereof shall prohibit the request for nonpublic information relating to Company or the Company’s board any of directors from (x) taking and disclosing its Subsidiaries or for access to the Company’s stockholders a position properties, books or records of Company or any of its Subsidiaries by any person that may be considering making, or has made, an Acquisition Proposal if Company is prepared to provide such person with access to such nonpublic information or properties, books or records. Company shall give Parent two business days' advance notice (which notice shall include the terms and conditions of such proposal with respect to a tender an Acquisition Proposal) of any definitive agreement providing for an Acquisition Proposal to be entered into with any person or exchange entity making any such inquiry, offer by a third party or proposal. Company shall not be permitted to terminate this Agreement pursuant to Rules 14d-9 Section 7.01(d)(1) unless it shall have satisfied the obligations of this Section 5.05 and 14e-2 promulgated under prior to any such termination, Company shall, and shall cause its financial and legal advisors to, during the Exchange Acttwo business day period referenced in the preceding sentence, or (y) making negotiate in good faith with Parent to make such disclosure adjustments in the terms and conditions of this Agreement as would enable Company to proceed with the transactions contemplated herein. Company will, and will cause the other persons listed in the first sentence of this Section 5.05 to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend date hereof with any Acquisition Proposal, or enter into any agreement parties with respect to any Acquisition Proposal. Upon execution of Subject to compliance with their fiduciary duties, as determined in good faith by the Company Board, and subject to the exceptions set forth in this AgreementSection 5.05, the Company will immediately cease Board shall not authorize Company to waive any existing activities, discussions standstill or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of contained in agreements to which shall be no more favorable Company is a party or to such third party which Company is subject, other than those provided for in the Parent Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hannaford Brothers Co), Merger Agreement (Food Lion Inc)
No Solicitation. (a) The From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 5.8, the Company shall will not, nor shall will it permit any of its Subsidiaries Company Subsidiary to, nor shall will it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or employee of, of the Company or any Company Subsidiary and each investment banker, attorney attorney, accountant or other advisor or representative (collectivelyof, “Representatives”) of the Company or any of its Subsidiaries Company Subsidiary to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or encourage the submission of, of any Acquisition Proposal, Proposal (as hereinafter defined) or (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate facilitate, an Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any an Acquisition Proposal; providedPROVIDED, HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit subject to compliance by the Company or with the provisions of Section 5.8(b), the Company’s board 's Board of directors from Directors may furnish information to, or enter into discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (xA) taking and disclosing the Company's Board of Directors, after consultation with its outside legal counsel, determines in good faith that such action is legally advisable for the Company's Board of Directors to comply with its fiduciary duties to the Company’s 's stockholders a position with respect under applicable Law, (B) such Acquisition Proposal is not subject to a tender any financing contingencies or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders asis, in the good faith judgment of the Company’s board 's Board of Directors after consultation with a nationally recognized financial advisor, reasonably capable of being financed, (C) the Company's Board of Directors determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant including after consultation with a nationally recognized financial advisor, would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (D) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality agreement in reasonably customary form.
(b) Prior to providing any information to or entering into discussions with any person in connection with an Acquisition Proposal by a person as set forth in Section 5.8(a), the Company shall notify Parent orally and in writing of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) or any inquiries indicating that any person is considering making or wishes to make an Acquisition Proposal, as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a prompt basis of (x) the status of any discussions or negotiations with any such third party, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent and (y) any request by any person for nonpublic information relating to its or any Company Subsidiaries' properties, books or records.
(c) Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers, directors, pursuant employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to advice from independent legal counsel, is reasonably expected any possible Acquisition Proposal. The Company agrees that it will take the necessary steps to be required under applicable law, provided that Company may not, except as permitted by promptly inform the individuals or entities referred to in the first sentence of Section 5.3(b), 5.8(a) of the obligations undertaken in this Section 5.8.
(d) The Company's Board of Directors will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement or the Merger except in connection with a Superior Proposal; PROVIDED, THAT, neither the Company nor the Board Recommendation of Directors of the Company may in such instance terminate this Agreement but instead the Company, at the option of and as directed by the Parent (in addition to the rights of Parent as set forth in Section 7.1(d)), shall, notwithstanding such withdrawal or approve modification of the recommendation or recommendapproval of this Agreement or the Merger by the Company's Board of Directors and/or the recommendation by the Company's Board of Directors that the Company's stockholders reject this Agreement or the Merger at the Company Stockholder Meeting, submit approval of this Agreement and the Merger as promptly as practicable to a vote of the holders of Company Shares at the Company Stockholders Meeting as contemplated by this Agreement, it being understood and agreed that, Parent, Company and Merger Sub elect that this Agreement to be governed by the second sentence of Section 251(c) of the GCL. If the Parent exercises its option under this Section 5.8(d) to require the Company to submit this Agreement to its stockholders for approval, the Parent shall no longer be entitled to terminate this Agreement under Section 7.1(d) hereof; PROVIDED, that the foregoing shall not limit the Parent's right to (i) terminate this Agreement under Section 7.1(e)(i) if notwithstanding the exercise of the option by the Parent to require the Company to submit this Agreement to the Company's stockholders for approval, this Agreement and the Merger fails to obtain the Requisite Company Vote at the Company's Stockholders Meeting and (ii) receive the amounts that are otherwise payable upon a termination of this Agreement pursuant to Section 7.1(e)(i) as provided in Section 7.5(b).
(e) Nothing contained in this Section 5.8 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 propose from making any disclosure to approve or recommend any Acquisition Proposalthe Company's stockholders if, or enter into any agreement in the good faith reasonable judgment of the Company's Board of Directors, after consultation with respect outside legal counsel, that failure to any Acquisition Proposal. Upon execution so disclose would be inconsistent with its obligations under applicable law.
(f) For purposes of this Agreement, "ACQUISITION PROPOSAL" means an inquiry, offer or proposal regarding any of the following (other than the Transactions contemplated by this Agreement) involving the Company will immediately cease or any existing activitiesCompany Subsidiary: (i) any merger, discussions consolidation, share exchange, recapitalization, business combination or negotiations with other similar transaction; (ii) any Person conducted heretofore with respect sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of the Company and the Company Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for fifteen percent (15%) or more of the outstanding shares of Company Common Stock or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal or plan to do any of the foregoing or any agreement to engage in any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Metromedia Fiber Network Inc), Merger Agreement (Metromedia Fiber Network Inc)
No Solicitation. (a) The From the date of this Agreement to the earlier to occur of the Effective Time of the Merger or the termination of this Agreement, each Combining Company and its Subsidiaries shall not, nor shall it such Combining Company or its Subsidiaries permit any of its Subsidiaries totheir respective officers, nor shall it directors or managers (or authorize (and shall use its best efforts not to permit) any affiliateAffiliates of any such officers, officerdirectors or managers), director Affiliates, or employee of, employees or any investment banker, attorney attorney, accountant or other advisor or representative retained by (or otherwise working on behalf of) such Combining Company or any of its Subsidiaries (collectively, “Representatives”) of the Company to directly or any of its Subsidiaries to, indirectly: (i) solicit solicit, initiate or initiate, or knowingly encourage, directly knowingly facilitate or indirectly, knowingly induce any inquiries relating inquiry with respect to, the making, submission or the submission of, announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data Proposal with respect to or provide access to the properties of the such Combining Company or any of its Subsidiaries, (ii) participate or otherwise engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Acquisition Proposal with respect to such Combining Company or any of its Subsidiaries, (iii) enter into engage in discussions with any agreement person with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender such Combining Company or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment any of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may notits Subsidiaries, except as permitted by Section 5.3(b)to the existence of these provisions, withdraw or modify(iv) approve, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve endorse or recommend any Acquisition ProposalProposal with respect to such Combining Company or any of its Subsidiaries (except to the extent specifically permitted pursuant to Section 5.2(c)), or (v) enter into any agreement letter of intent or similar document or any contract contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby with respect to such Combining Company or any Acquisition Proposalof its Subsidiaries. Upon execution of this Agreement, the Each Combining Company and its Subsidiaries will immediately cease cease, and will cause its Representatives to immediately cease, any and all existing activities, discussions or negotiations with any Person third parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality The foregoing provisions of which this Section 5.2(a) shall be no more favorable to such third party than those provided for in not prohibit the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all taking of the information required to be disclosed any actions by the Company to Parent by this Section 5.3) if:
Combining Companies and their Subsidiaries and their respective Representatives in connection with (x) such Person any of the Subscription Offers or group has submitted (y) a Superior Proposal;potential initial public offering of either Combining Company or their Subsidiaries occurring following the earlier to occur of the Effective Time of the Merger or the termination of this Agreement.
Appears in 2 contracts
Sources: Combination Agreement (Nine Energy Service, Inc.), Combination Agreement (Nine Energy Service, Inc.)
No Solicitation. (a) The Company shall notAcquirer agrees that, from and after the date of this Agreement until the earlier of the Termination Date and the Effective Time, neither it nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company officers or any directors of it or its Subsidiaries to, (i) solicit or initiate, its or encouragetheir Representatives shall, directly or indirectly, initiate, solicit or otherwise facilitate any inquiries relating or the making of an Acquirer Acquisition Proposal (as defined below). Acquirer further agrees that neither it nor any of its Subsidiaries nor any of its or its Subsidiaries' officers or directors shall, and that it shall direct and use its best reasonable efforts to cause its Representatives not to, directly or the submission ofindirectly, have any discussions with or provide any confidential information or data to any Person relating to an Acquirer Acquisition Proposal, (ii) participate Proposal or engage in any discussions or negotiations regarding any concerning an Acquirer Acquisition Proposal, or in connection with otherwise facilitate any Acquisition Proposal, effort or furnish attempt to any Person any information make or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any implement an Acquirer Acquisition Proposal; provided, however, that nothing contained in this Section 5.3 Agreement shall prevent Acquirer or any other provision hereof shall prohibit the Company or the Company’s board its Board of directors Directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (yi) making such any disclosure to the Company’s its stockholders asif, in the good faith judgment of the Company’s board its Board of directorsDirectors, pursuant failure so to advice from independent legal counsel, is reasonably expected to disclose would be required inconsistent with its obligations under applicable law; (ii) negotiating with or furnishing information to any Person who has made a bona fide written Acquirer Acquisition Proposal which did not result from a breach of this Section 6.2; or (iii) recommending such Acquirer Acquisition Proposal to its stockholders, provided that Company may notif and only to the extent that, except as permitted by Section 5.3(bin the case of actions referred to in clause (ii) or clause (iii), withdraw or modify, or propose to withdraw or modify, such Acquirer Acquisition Proposal is a Superior Proposal (as defined below) and the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition is given at least two business days' notice of the existence of such Superior Proposal. Upon execution of this AgreementAcquirer agrees that it will, on the Company will date hereof, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Acquirer Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of Acquirer from complying with Rule 14d-9 and Rule 14e-2 promulgated under the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Exchange
Appears in 2 contracts
Sources: Merger Agreement (Diamond Multimedia Systems Inc), Merger Agreement (Diamond Multimedia Systems Inc)
No Solicitation. (a) The Company ACC shall, and shall direct and use commercially reasonable efforts to cause its officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to an ACC Takeover Proposal (as hereinafter defined). ACC shall not, nor shall it permit any of its Subsidiaries subsidiaries to, nor shall it authorize (and shall use or permit any of its best efforts not to permit) any affiliateofficers, officer, director directors or employee of, employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company retained by it or any of its Subsidiaries subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(i) solicit, initiate or the submission of, any Acquisition Proposal, encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties including by way of the Company or any of its Subsidiariesfurnishing information), or take any other action designed or reasonably likely to knowingly facilitate facilitate, including, without limitation, any amendment, modification or termination, or any agreement to do any of the foregoing, to the ACC Rights Plan or any redemption of the Rights, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition ACC Takeover Proposal or (iiiii) enter into participate in any agreement with respect to discussions or negotiations regarding any Acquisition Proposal or approve or resolve to approve any Acquisition ACC Takeover Proposal; provided, however, that nothing contained in this Section 5.3 or if, at any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, time prior to the time of acceptance the ACC Stockholders Meeting, the Board of Company Common Stock for payment Directors of ACC determines in good faith, upon advice from outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to ACC's stockholders under applicable law, ACC may, in response to an ACC Takeover Proposal or material modification to an ACC Takeover Proposal, which ACC Takeover Proposal or material modification was made after the date hereof and was not solicited after the date hereof, and subject to compliance with Section 4.8(c), (x) furnish information with respect to ACC to any person pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, which either was executed prior to the confidentiality provisions of which shall be no more favorable date hereof or is substantially similar to such third party than those provided for in the Confidentiality Agreement dated as of November 13, 1997 by and between ACC and TCG and (provided that y) participate in negotiations regarding such confidentiality agreement must permit ACC Takeover Proposal or material modification made after the Company date hereof. "ACC Takeover Proposal" means any inquiry, proposal or offer from any person relating to disclose to Parent all any direct or indirect acquisition or purchase of 15% or more of the information required to be disclosed by assets of ACC and its subsidiaries or 15% or more of any class of equity securities of ACC or any of its subsidiaries, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of equity securities of ACC or any of its subsidiaries, any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving ACC or any of its subsidiaries (other than the Company to Parent transactions contemplated by this Section 5.3Agreement) if:
(x) such Person or group has submitted a Superior Proposal;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 diminish materially the benefits to TCG of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Teleport Communications Group Inc), Merger Agreement (Acc Corp)
No Solicitation. (a) The Company shall notExcept as otherwise provided in this Section 5.3, neither the Company, WFB nor shall it permit any WFS shall, and each of its them will cause their respective Subsidiaries toand their Subsidiaries’ officers, nor shall it authorize (directors, employees, agents, and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative advisors (collectively, “Representatives”) of not to, encourage, solicit, participate in, initiate or knowingly facilitate inquiries or proposals with respect to, or engage in any discussions or negotiations with, or provide any information to, any Person (other than the Company Purchaser or its Subsidiaries, or any of its Subsidiaries totheir respective Representatives) with respect to any offer or proposal concerning an Alternative Transaction (an “Acquisition Proposal”); provided, (i) solicit however, that the Company may, in response to a request for information or initiateaccess by any Person making a written Acquisition Proposal to the Company’s board of directors, made after the date hereof that was not encouraged, solicited or encourageinitiated by the Company, WFB, WFS or any of their respective Representatives on or after the date hereof, directly or indirectly, furnish information and access pursuant to a confidentiality agreement with such Person on terms no less favorable to the Company than the Confidentiality Agreement, and may participate in discussions and negotiate with such Person concerning any inquiries relating to, or the submission of, any such Acquisition Proposal, in each case if and only if (iii) participate in any discussions or negotiations regarding any such Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, Proposal constitutes or may reasonably be expected to lead toto a Superior Proposal, and (ii) the Company’s board of directors and the Company Special Committee, after consultation with outside legal counsel, believes in good faith that such action is necessary for the Company’s board of directors to comply with their fiduciary duties to the shareholders of the Company. The Company shall immediately cease and cause to be terminated any Acquisition Proposal activities, discussions or (iii) enter into negotiations conducted before the date of this Agreement with any agreement Persons other than the Purchaser with respect to any Acquisition Proposal and shall use its reasonable best efforts to enforce any confidentiality or approve similar agreement relating to an Acquisition Proposal. The Company shall promptly (and in any event within one business day) notify the Purchaser and the WFS Special Committee upon receipt of any written Acquisition Proposal, shall provide the Purchaser and the WFS Special Committee with the material terms and conditions of such proposal, and shall keep the Purchaser and the WFS Special Committee apprised of any related developments, discussions and negotiations on a current basis (but in no event, later than twenty-four (24) hours of any material developments, discussions or resolve negotiations relating to approve such proposal).
(b) If, in response to an Acquisition Proposal that did not result from a breach of Section 5.3(a) (an “Outside Proposal”), the Company’s board of directors and the Company Special Committee conclude in good faith (after consultation with a financial advisor and outside legal counsel) that such Outside Proposal is a Superior Proposal, the Company’s board of directors may (subject to this and the following two sentences) terminate this Agreement pursuant to Section 8.1(g) but only at a time that is prior to the Company Shareholder Meeting and after the fifth (5th) Business Day following delivery by the Company to the Purchaser of a written notice advising the Purchaser that the board of directors of the Company has authorized the Company to enter into a definitive written agreement regarding such Outside Proposal, attaching the most current version of such agreement to such notice, and the Purchaser does not make, within such period, a valid and legally binding offer that the board of directors of the Company and the Company Special Committee determine, in good faith after consultation with a financial advisor, is at least as favorable, from a financial point of view, to the shareholders of the Company as the Outside Proposal (any such offer being referred to as an “Adjusted Purchaser Proposal”). If requested by the Purchaser in response to a notice advising the Purchaser that the board of directors of the Company have authorized the Company to enter into a definitive written agreement regarding an Outside Proposal, the Company, during such five (5) Business Day period, shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser with respect to any Adjusted Purchaser Proposal.
(c) Nothing contained in this Agreement shall prohibit the Company or its board of directors from otherwise complying with Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act with respect to an Acquisition Proposal; provided, that nothing contained such Rules will in this Section 5.3 no way eliminate or modify the effect that any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party action pursuant to such Rules 14d-9 and 14e-2 promulgated would otherwise have under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Westcorp /Ca/), Merger Agreement (Wachovia Corp New)
No Solicitation. (a) The From the date of this Agreement until the Effective Time or the termination of this Agreement pursuant to the terms of this Agreement, the Company shall not, nor not and shall it not permit any of its Subsidiaries toSubsidiaries, nor shall it authorize (and shall use its best efforts not to permit) any affiliateAffiliates, officerdirectors, director officers, employees, agents or employee ofrepresentatives, or including, without limitation, any investment banker, attorney or other advisor or representative (collectively, “Representatives”) accountant of the Company or any of its Subsidiaries to(collectively, (i) solicit or initiate, or encourage"Representatives"), directly or indirectly, any inquiries relating to: (i) initiate, solicit, knowingly facilitate or encourage the submission of, any of an Acquisition Proposal, Proposal for the Company; (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action knowingly to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any constitutes an Acquisition Proposal for the Company; (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company; or (iiiiv) enter into any agreement with respect to any Acquisition Proposal for the Company, other than with Acquiror. The Company shall notify its Representatives of the terms of this Section 7.8 and use reasonable efforts to cause such Representatives to comply with such terms. The Company shall cease and cause to be terminated immediately all existing discussions or approve negotiations with any persons conducted heretofore with respect to, or resolve that could be reasonably expected to approve lead to, any Acquisition Proposal; provided, that nothing Proposal for the Company.
(b) Nothing contained in this Section 5.3 or any other provision hereof 7.8 shall prohibit the Company or the Company’s board of directors from from: (xi) taking and disclosing to the Company’s its stockholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2 promulgated under the Exchange Act; (ii) making a recommendation in compliance with Rule 14d-9 promulgated under the Exchange Act; or (iii) furnishing information to, or (y) making such disclosure engaging in discussions or negotiations with, any Person that makes a bona fide proposal or offer with respect to the Company that constitutes an Acquisition Proposal for the Company’s stockholders as, in if: (1) the good faith judgment Board of Directors of the Company’s board Company determines in good faith, taking into account the advice of directors, pursuant to advice from independent legal outside counsel, that such action is reasonably expected likely to be required for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify(2) prior to furnishing such information to, or propose to withdraw entering into discussions or modifynegotiations with, such Person the Company Board Recommendation or approve or recommend, or propose provides written notice to approve or recommend any Acquiror of the existence of such Acquisition ProposalProposal for the Company and that it intends to furnish information to, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of such Acquisition Proposal for the foregoing. Notwithstanding the foregoingCompany, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, (3) the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered enters into a confidentiality agreement, agreement with the confidentiality provisions of which shall be no Person making such Acquisition Proposal for the Company on terms in the aggregate not more favorable to such third party Person than those provided for in the terms of the Confidentiality Agreement Agreements, (provided that such confidentiality agreement must permit 4) the Company to disclose to Parent all shall keep Acquiror informed on a timely basis of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
status of such negotiations and all material terms and conditions thereof and promptly provide Acquiror with copies of any and all written inquiries or proposals relating thereto, and (x5) such Person or group has submitted a Superior Proposal;Acquisition Proposal was not solicited in violation of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Advanced Communication Systems Inc), Merger Agreement (Titan Corp)
No Solicitation. (a) The Company shall notnot directly or indirectly do, nor and shall it permit ensure that no Representative of any of its Subsidiaries tothe Acquired Corporations directly or indirectly does, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, following: (i) solicit solicit, initiate or initiate, or knowingly encourage, directly induce or indirectlyfacilitate the communication, any inquiries relating tomaking, submission or the submission of, announcement of any Acquisition Proposal, (ii) participate in any discussions Proposal or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, Inquiry or take any other action to knowingly facilitate the making of any proposal that constitutes, or may would reasonably be expected to lead to, any to an Acquisition Proposal or Acquisition Inquiry; (iiiii) enter into subject to Section 4.3(b), furnish any agreement information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry or engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or approve Acquisition Inquiry; or resolve (iii) subject to approve Section 5.2(c), approve, endorse, agree to or recommend any Acquisition Proposal; providedProposal or execute or enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction.
(b) Notwithstanding anything contained in Section 4.3(a) (but subject to the other provisions of this Agreement), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or engage in negotiations with, any Person that nothing contained has submitted (and not withdrawn) a bona fide written Acquisition Proposal that the board of directors of the Company has reasonably determined in good faith, after consultation with the Company’s outside legal counsel and financial advisor, constitutes a Superior Offer or could reasonably be expected to lead to a Superior Offer if: (A) neither the Company nor any Representative of any of the Acquired Corporations shall have materially breached any of the provisions set forth in this Section 5.3 or any other provision hereof shall prohibit 4.3; (B) the Company or the Company’s board of directors from (x) taking and disclosing of the Company determines in good faith, after having considered the advice of its outside legal counsel, that such action is required in order for the board of directors of the Company to comply with its fiduciary duties to the Company’s stockholders a position under applicable Legal Requirements; (C) prior to or concurrent with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actfurnishing any such nonpublic information to, or (y) making entering into discussions or negotiations with, such disclosure to Person, the Company’s stockholders as, in Company gives Parent written notice of the good faith judgment identity of such Person and of the Company’s board of directors, pursuant intention to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposalfurnish nonpublic information to, or enter into discussions or negotiations with, such Person; (D) the Company receives from such Person an executed confidentiality agreement containing nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (E) concurrent with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent).
(c) If the Company or any Representative of the Company receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 24 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent of such Acquisition Proposal or Acquisition Inquiry, including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof. The Company shall promptly (and in no event later than 24 hours) provide notice to Parent of any material change in the status and terms of any such Acquisition Proposal and any modification or proposed modification thereto.
(d) The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal or Acquisition Inquiry.
(e) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any “standstill” or similar agreement with respect to any Company Common Stock unless the board of directors of the Company determines in good faith, after having considered the advice of its outside legal counsel, that failure to release would be reasonably likely to result in a breach of its fiduciary duties. The Company either has or shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Proposal. Upon execution Transaction or equity investment in the Company in the last twelve (12) months prior to the date of this Agreement, Agreement to return to the Company will immediately cease any existing activities, discussions all confidential information heretofore furnished to such Person by or negotiations with any Person conducted heretofore with respect to on behalf of any of the foregoing. Notwithstanding the foregoing, prior Acquired Corporations or destroy such confidential information in each case to the time extent such third-party is required to do so under the terms of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Zilog Inc)
No Solicitation. (a) The Company shall Seller agrees that, except as expressly permitted by Section 6.7(b), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Section 8.1, it will not, nor shall it permit any of and will cause its Subsidiaries and its Subsidiaries' officers, directors, and employees (the "Seller Individuals") not to, nor shall it authorize (and shall will use its commercially reasonable best efforts to cause Seller and its Subsidiaries' agents, advisors and controlled affiliates, accountants, legal counsel, and financial advisors (the "Seller Representatives") not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, solicit, encourage or encourage, directly knowingly facilitate inquiries or indirectly, any inquiries relating proposals with respect to, or the submission of, any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding any Acquisition Proposalconcerning, or in connection with provide any Acquisition Proposal, confidential or furnish to any Person any nonpublic information or data with respect to concerning its and/or its Subsidiaries business, properties or provide access to the properties of the Company or any of its Subsidiariesassets ("Seller Confidential Information") to, or take have any other action to knowingly facilitate the making of discussions with, any proposal that constitutes, person or may reasonably be expected to lead entity relating to, any Acquisition Proposal (as defined below). Seller will immediately cease and cause to be terminated any activities, discussions or (iii) enter into negotiations conducted before the date of this Agreement with any agreement persons or entities other than Buyer with respect to any Acquisition Proposal and will use its commercially reasonable best efforts, subject to applicable law, to enforce any confidentiality or approve or resolve similar agreement relating to approve any such an Acquisition Proposal; provided.
(b) Notwithstanding anything to the contrary in Section 6.7(a), that nothing contained at any time from the date of this Agreement and prior to obtaining the Seller Shareholder Approval, in this Section 5.3 or any other provision hereof shall prohibit the Company or event Seller receives an unsolicited Acquisition Proposal and the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, of Seller determines in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any such Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning Proposal constitutes a Superior Proposal (as defined below)) or is reasonably likely to result in a Superior Proposal, provided that such Person or group shall have entered into Seller may, and may permit its Subsidiaries and the Seller Individuals and the Seller Representatives to, (i) negotiate the terms of, and enter into, a confidentiality agreement, the confidentiality provisions of which shall be agreement with terms and conditions no more less favorable to such third party Seller than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required an "Acceptable Confidentiality Agreement"), (ii) furnish or cause to be disclosed by furnished Seller Confidential Information to the Company person or entity making such Acquisition Proposal pursuant to Parent by this Section 5.3an Acceptable Confidentiality Agreement, and (iii) if:negotiate and participate in such negotiations or discussions with the person or entity making such Acquisition Proposal concerning such Acquisition Proposal, if the board of directors of Seller determines in good faith (following consultation with counsel) that failure to take such actions would result in a violation of its fiduciary duties under applicable law.
(xc) The board of directors of Seller shall not (nor shall any committee thereof) withdraw or modify, in a manner adverse to Buyer, the Seller Board Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify in any manner adverse to Buyer the Seller Board Recommendation (any such Person or group has submitted action, a "Change in Recommendation"). Notwithstanding the foregoing, the board of directors of Seller (including any committee thereof) may, at any time prior to obtaining the Seller Shareholder Approval, effect a Change in Recommendation in response to a bona fide written unsolicited Acquisition Proposal made after the date of this Agreement that the board of directors of Seller determines in good faith (after consultation with Seller's outside legal counsel) constitutes a Superior Proposal;; provided, however, that the board of directors of Seller may not make a Change in Recommendation, or terminate this Agreement pursuant to Section 8.1(f), with respect to an Acquisition Proposal until it has given Buyer at least four (4) business days, following Buyer's initial receipt of written notice that the board of directors of Seller has determined that such Acquisition Proposal is a Superior Proposal and the reasons therefor, to respond to any such Acquisition Proposal and, taking into account any amendment or modification to this Agreement proposed by Buyer, the board of directors of Seller determines in good faith (after consultation with counsel) that such Acquisition Proposal continues to constitute a Superior Proposal.
(d) Seller will promptly (and in any event within two (2) business days) advise Buyer in writing following receipt of any Acquisition Proposal and the substance thereof (including the identity of the person or entity making such Acquisition Proposal), and will keep Buyer apprised of any related developments, discussions and negotiations (including the terms and conditions, whether written or oral, of the Acquisition Proposal) on a current basis.
(e) As used in this Agreement, the following terms have the meanings set forth below:
Appears in 2 contracts
Sources: Merger Agreement (Southern Missouri Bancorp, Inc.), Merger Agreement (Southern Missouri Bancorp, Inc.)
No Solicitation. Cybear and its Subsidiaries and the officers, directors, employees, agents, representatives and advisors of Cybear and its Subsidiaries (acollectively, the "Representatives") The Company shall will not, nor shall it permit directly or indirectly, (i) take any action to solicit, initiate, encourage (including by way of furnishing information) or take any other action designed to facilitate or agree to any Takeover Proposal or (ii) subject to the next three sentences, engage in negotiations with, or disclose any nonpublic information relating to Cybear or its Subsidiaries to, nor shall it authorize (and shall use its best efforts not or afford access to permit) any affiliatethe properties, officer, director books or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) records of the Company Cybear or any of its Subsidiaries to, (i) solicit or initiateany person that has advised Cybear that it may be considering making, or encouragethat has made, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition a Takeover Proposal, or in connection with any Acquisition Proposal, or furnish whose efforts to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably formulate a Takeover Proposal would be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposalassisted thereby; provided, that nothing contained in this Section 5.3 or any other provision hereof herein shall prohibit the Company or the Company’s board Cybear's Board of directors Directors from (x) taking and disclosing to the Company’s its stockholders a position with respect to a an unsolicited tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Securities Exchange Act. Notwithstanding the immediately preceding sentence, or (y) making such disclosure if an unsolicited Takeover Proposal shall be received by the Board of Directors of Cybear, then, to the Company’s stockholders as, extent the Board of Directors of Cybear believes in the good faith judgment of the Company’s board of directors, pursuant to (after receiving written advice from independent legal counsel, its financial advisor) that such Takeover Proposal is reasonably expected capable of being consummated and would, if consummated, result in a transaction more favorable to be required Cybear's Stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Cybear determines in good faith that it is necessary for the Board of Directors of Cybear to further entertain and consider the Superior Proposal in order to comply with its fiduciary duties to stockholders under applicable law, Cybear and its Representatives may furnish information to the party making such Superior Proposal and engage in negotiations with such party, and such actions shall not be considered a breach of this Section 6(k) or any other provisions of this Agreement; provided that Company in each such event Cybear notified Andrx of such determination by Cybear's Board of Directors and has delivered to the other party a true and complete copy of the Superior Proposal (or summary of any oral proposal) received from such third party and all documents containing or referring to non-public information of Cybear that are supplied to such third party. Further, Cybear shall provide such non-public information pursuant to a restrictive nondisclosure agreement. In addition, Cybear shall not agree to or endorse, and shall not permit any of its officers, directors, employees or other representatives to agree to or endorse, any Takeover Proposal or withdraw its recommendation of this Agreement and the Cybear Merger unless the Board of Directors of Cybear believes in good faith (after receiving written advice from its financial advisors) that such action is required in order for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law, Cybear has provided Andrx at least ten business days prior notice thereof and within such ten business days Cybear has not received a proposal from Andrx superior in value to the Superior Proposal as determined by Cybear's Board of Directors acting in good faith consistent with complying with its fiduciary duties to stockholders under applicable law, and Cybear has terminated this Agreement pursuant to Section 8(a). Cybear will promptly (and in any event within 24 hours) notify the other party after receipt of any Takeover Proposal or any notice that any person is considering making a Takeover Proposal or any request for non-public information relating to Cybear or any of its subsidiaries or for access to the properties, books or records of Cybear or any of its subsidiaries by any person that has advised Cybear that it may not, except as permitted by Section 5.3(b), withdraw or modifybe considering making, or propose to withdraw or modifythat has made, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition a Takeover Proposal, or enter into whose efforts to formulate a Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Andrx fully informed of the status and details of any agreement such Takeover Proposal notice, request or any correspondence or communications related thereto and shall provide the other party 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 complete written summary thereof, if it is not in writing. Cybear shall immediately cease and cause to be terminated any discussion or negotiations with any persons conducted that may have existed with respect to any Acquisition Proposal. Upon a Takeover Proposal prior to the execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Cybear Inc), Merger Agreement (Andrx Corp)
No Solicitation. From the date hereof until the Effective Time or, if earlier, the termination of this Agreement pursuant to Article IX, the Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), and the Company shall cause its respective officers, directors, advisors, representatives or other agents of the Company not to, (a) The solicit, initiate or knowingly encourage any Acquisition Proposal (as defined herein) or (b) engage in discussions or negotiations with, or disclose any non-public information relating to the Company shall notor its Subsidiaries or afford access to the properties, nor shall it permit any books or records of the Company or its Subsidiaries to, nor any Person that has made an Acquisition Proposal or has advised the Company that it is interested in making an Acquisition Proposal; provided that, if and only if (i) the Company's Board of Directors believes in good faith, based on such matters as it deems relevant, including the advice of the Company's financial advisor, that such Acquisition Proposal is a Financially Superior Proposal (as defined herein) and (ii) the Company's Board of Directors determines in good faith, based on such matters as it deems relevant, including consultation with the Company's outside legal counsel, that the failure to engage in such negotiations or discussions or provide such information is a breach of the fiduciary duties of the Board of Directors of the Company under applicable Law, then the Company may engage in any act otherwise proscribed by clause (b) above. The Company shall it authorize (as promptly as practicable provide Acquiror with a copy of any written Acquisition Proposal received and a written statement with respect to any nonwritten Acquisition Proposal received, which statement shall use its best efforts not to permit) include the identity of the Person making the Acquisition Proposal and the material terms thereof. The Company shall inform Acquiror as promptly as practicable of any affiliatechange in the price, officerstructure, director form of consideration or employee ofmaterial terms and conditions regarding the Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation, recapitalization, liquidation or other business combination involving the Company or any investment banker, attorney of its Material Subsidiaries (as defined herein) or other advisor the acquisition or representative (collectively, “Representatives”) purchase of 20% or more of any class of equity securities of the Company or any of its Subsidiaries to, (i) solicit or initiateMaterial Subsidiaries, or encourageany tender offer or exchange offer, directly or indirectlythat, any inquiries relating toif consummated, or the submission of, any Acquisition Proposal, (ii) participate would result in any discussions Person (other than Acquiror and its affiliates) beneficially owning 20% or negotiations regarding more of any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties class of equity securities of the Company or any of its Material Subsidiaries, or take any the acquisition, license or purchase of a substantial portion of the technology, business or assets of the Company and its Subsidiaries, other action to knowingly facilitate than the making transactions contemplated by this Agreement and other than in the ordinary course of any proposal that constitutesbusiness. As used herein, or may reasonably be expected to lead to, any a "Financially Superior Proposal" shall mean an Acquisition Proposal or which in the reasonable judgment of the Company's Board of Directors, based on such matters as it deems relevant, including the advice of the Company's financial advisor, (iiii) enter into any agreement with respect will result in a transaction providing aggregate value greater than that provided pursuant to any Acquisition Proposal or approve or resolve to approve any this Agreement and (ii) is reasonably capable of being financed by the Person making such Acquisition Proposal; provided. As used herein, that nothing contained "Material Subsidiary" means any Subsidiary of the Company whose consolidated revenues, net income or assets constitute 20% or more of the revenues, net income or assets of the Company and its Subsidiaries, taken as a whole. Nothing in this Agreement, including Section 5.3 or any other provision hereof 6(g), shall prohibit the Company or the Company’s board 's Board of directors Directors from (x) taking and disclosing to the Company’s 's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 14e-2(a) promulgated under the Exchange Act, Act or (y) from making such any disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under by an applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Law.
Appears in 2 contracts
Sources: Merger Agreement (America Online Inc), Merger Agreement (America Online Inc)
No Solicitation. (a) The Company shall, and shall direct and cause its officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Company Takeover Proposal (as defined below) and immediately request that all confidential information furnished by or on behalf of the Company be returned. The Company shall not, nor shall it permit any of its Subsidiaries subsidiaries to, nor shall it authorize (and shall use or permit any of its best efforts not to permit) any affiliateofficers, officer, director directors or employee of, employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company retained by it or any of its Subsidiaries to, (i) solicit or initiate, or encouragesubsidiaries, directly or indirectly, any inquiries relating toto (i) solicit, initiate or the submission of, any Acquisition Proposal, encourage (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties including by way of the Company or any of its Subsidiariesfurnishing information), or take any other action knowingly designed or reasonably likely to knowingly facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Company Takeover Proposal or (iiiii) enter into participate in any agreement with respect to discussion or negotiations regarding any Acquisition Proposal or approve or resolve to approve any Acquisition Company Takeover Proposal; provided, however, that nothing contained in this Section 5.3 or if, at any other provision hereof shall prohibit time prior to the Company or shareholder meeting with respect to the Company’s board transactions contemplated hereby, the Board of directors from (x) taking and disclosing Directors of the Company determines in good faith, based on the advice of its outside legal counsel, that the failure to do so would result in a breach of its fiduciary duties to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required 's shareholders under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modifyLaw, the Company Board Recommendation or approve or recommendmay, or propose in response to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the a Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that and subject to compliance with Section 4.8(c), (x) furnish information with respect to the Company to any person pursuant to a customary confidentiality agreement (as determined by the Company after consultation with outside legal counsel) and (y) participate in negotiations regarding such Person Company Takeover Proposal for purposes of determining in good faith if such Company Takeover Proposal is a Company Superior Proposal. "Company Takeover Proposal" means any inquiry, proposal or group offer from any person relating to (1) any direct or indirect acquisition or purchase of assets representing 20% or more of the consolidated assets of the Company and the Company Subsidiaries, (2) any issuance, sale, or other disposition of (including by way of merger, consolidation, business combination, share exchange, joint venture, or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing 20% or more of the voting power of the Company, (3) any tender offer, exchange offer or other transaction in which, if consummated, any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Securities Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Securities Exchange Act) shall have entered into a confidentiality agreementbeen formed which beneficially owns or has the right to acquire beneficial ownership, of, 20% or more of the outstanding voting capital stock of the Company, or, (4) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Company Subsidiary, other than the transactions contemplated by this Agreement. Notwithstanding any provision to the contrary contained in this Section 4.8, the confidentiality provisions provision by the Company of copies of its SEC filings by its investor relations department to third parties in a manner consistent with its historical practices, shall not be deemed a violation of this Section 4.8. For purposes of this Agreement, a "Company Superior Proposal" means any bona fide proposal made by a third party to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than a majority of the combined voting power of the Company Shares then outstanding or all or substantially all the assets of the Company, on terms which shall the Board of Directors of the Company determines in its good faith judgment based on the advice of the Company's financial advisers and outside legal counsel to be no more favorable to the Company's shareholders, from a financial point of view, than the Merger (taking into account all factors relating to such third party than those provided for in proposed transaction deemed relevant by the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all Board of Directors of the information required to be disclosed by Company, including, without limitation, the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;financing thereof and all other conditions thereto).
Appears in 2 contracts
Sources: Merger Agreement (Sunbeam Corp/Fl/), Merger Agreement (Landrys Seafood Restaurants Inc)
No Solicitation. (a) The Company shall and its Subsidiaries and affiliates will not, nor shall it permit any of and the Company and its Subsidiaries toand affiliates will use their reasonable efforts to ensure that their respective officers, nor shall it authorize directors, employees, investment bankers, attorneys, accountants and other representatives and agents do not, directly or indirectly, initiate, solicit, encourage or participate in, or provide any information to any Person (and shall use its best efforts not as defined below) concerning, or take any action to permit) any affiliate, officer, director or employee facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any investment banker, attorney or other advisor or representative Acquisition Proposal (collectively, “Representatives”as defined below) of the Company or any of Subsidiary or affiliate or an inquiry with respect thereto. The Company shall, and shall cause its Subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, (i) solicit or initiateimmediately cease and cause to be terminated all existing activities, or encouragediscus- sions and negotiations, if any, with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, the Company may, directly or indirectly, provide access and furnish information concerning its business, properties or assets to any inquiries relating tocorporation, partnership, person or the submission ofother entity or group pursuant to an appropriate confidentiality agreement, any Acquisition Proposal, (ii) 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 submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction and (y) if, in the opinion of the Board of Directors of the Company, after consultation with independent legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations regarding would be inconsistent with their fiduciary duties under applicable law.
(b) The Company shall promptly notify Parent and Purchaser of any such offers, proposals or Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to Proposals (including without limitation the properties terms and conditions thereof and the identity of the Company or any Person making it), and will keep Parent apprised of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement all developments with respect to any such Acquisition Proposal. The Company shall give Parent written notice (an "Intent Notice") of any Acquisition Proposal that the Company intends to accept as an Acceptable Offer (as defined below) in accordance with the terms hereof at least two business days prior to accepting such offer or approve otherwise entering into any agreement or resolve to approve understanding with respect thereto. For purposes hereof, any modification of an Acquisition Proposal shall constitute a new Acquisition Proposal; provided, that nothing .
(c) Nothing contained in this Section 5.3 or any other provision hereof 6.1 shall prohibit the Company or the Company’s board its Board of directors Directors from (xi) taking and disclosing to the Company’s stockholders 's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (yii) making such disclosure to the Company’s stockholders as's shareholders which, in the good faith judgment opinion of the Board of Directors of the Company’s board of directors, pursuant to advice from after consultation with independent legal counselcounsel to the Company, is reasonably expected to may be required under applicable law.
(d) As used in this Agreement, provided that Company may not"Acquisition Proposal" when used in connection with any Person shall mean any tender or exchange offer involving such Person, except as permitted by Section 5.3(b)any proposal for a merger, withdraw consolidation or modifyother business combination involving such Person or any subsidiary of such Person, any proposal or offer to acquire in any manner a substantial equity interest in, or propose to withdraw a substantial portion of the business or modifyassets of, the Company Board Recommendation such Person or approve any subsidiary of such Person, any proposal or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement offer with respect to any Acquisition Proposal. Upon execution recapitalization or restructuring with respect to such Person or any subsidiary of such Person or any proposal or offer with respect to any other transaction similar to any of the foregoing with respect to such Person, or any subsidiary of such Person; PROVIDED, HOWEVER, that, as used in this Agreement, the term "Acquisition Proposal" shall not apply to (i) any offer or proposal for a transaction between the Company will immediately cease any existing activities, discussions or negotiations with and any Person conducted heretofore with respect providing for the sale to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed capital stock of, and the Company's rights, interests, obligations and liabilities relating to, POL which is covered by Section 6.13 hereof (a "POL Proposal") and (ii) any transaction of the type described in this subsection (d) involving Parent, Purchaser or their affiliates. As used in this Agreement, "Person" shall mean any corporation, partnership, person or other entity or group (including the Company to and its affiliates and representatives, but excluding Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;any of its affiliates or representatives).
Appears in 2 contracts
Sources: Merger Agreement (Psicor Inc), Merger Agreement (Baxter International Inc)
No Solicitation. (a) The From and after the date hereof, the Company agrees (i) that it and its subsidiaries shall not, nor shall it or its subsidiaries authorize or knowingly permit any of its Subsidiaries todirector, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director officer or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries tosubsidiaries or any investment banker, (i) solicit attorney, accountant or initiate, other advisor or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties representative of the Company or any of its Subsidiariessubsidiaries (collectively, the "Representatives") to, directly or indirectly, solicit, initiate or encourage, or take any other action knowingly to knowingly facilitate facilitate, any Takeover Proposal (as defined below) or engage in any discussions or negotiations regarding, or provide any nonpublic information or data to make or implement, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; (ii) that it shall immediately cease and cause to be terminated any existing discussions or negotiations with any third persons conducted heretofore with a view to formulating a Takeover Proposal; and (iii) that it shall immediately notify Parent of the making receipt of any proposal Takeover Proposal and that constitutesit shall keep Parent informed of the status of such Takeover Proposal; provided, or may however, that, at any time prior to obtaining the Stockholder Approval, the Company may, in response to a bona fide Takeover Proposal that the Board of Directors of the Company determines in good faith could reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below) and which Takeover Proposal did not result from a breach of this Section 4.02, (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement (except that such confidentiality agreement shall not prohibit such person from making an unsolicited Takeover Proposal), provided that all such Person information is provided on a prior or group shall have entered into a confidentiality agreementsubstantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the confidentiality provisions of which shall be no more favorable to person making such third party than those provided for in the Confidentiality Agreement Takeover Proposal (provided that and its representatives) regarding such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Takeover Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Rwe Aktiengesellschaft /Adr/), Merger Agreement (American Water Works Co Inc)
No Solicitation. (a) The Except as permitted by this Section 6.6, during the Pre-Closing Period, the Company shall not, nor and the Company shall it permit any of its cause the Company Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) the Representatives of the Company or any of its and the Company Subsidiaries not to, (i) solicit or solicit, initiate, or encourage, directly or indirectly, any inquiries relating to, or knowingly encourage the submission of, any Acquisition ProposalTakeover Proposal or any inquiry, proposal, offer or indication of interest that would reasonably be expected to lead to a Takeover Proposal (a “Takeover Inquiry”), (ii) approve or recommend any Takeover Proposal, enter into any agreement, agreement-in-principle or letter of intent with respect to or accept any Takeover Proposal or Takeover Inquiry (or resolve to or publicly propose to do any of the foregoing), (iii) participate or engage in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesin connection with, or knowingly take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead to, any Acquisition Takeover Proposal or Takeover Inquiry, or (iiiiv) enter into terminate, amend, waive or fail to enforce any rights under any confidentiality or non-use agreement or provision relating to a Takeover Proposal or “standstill” or other similar agreement to which the Company or any of the Company Subsidiaries is a party; provided, however, that prior to the Offer Acceptance Time, in response to an unsolicited written Takeover Proposal from a third party that has not been withdrawn and that the Company Board determines in good faith (after receiving the advice of its financial advisor and outside counsel) is, or could reasonably be expected to result in or lead to, a Superior Proposal, the Company and its Representatives may (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Takeover Proposal and its Representatives and afford access to the business, properties, assets, books, records or personnel of the Company and any Acquisition Company Subsidiary, in each case, pursuant to an Acceptable Confidentiality Agreement and (y) participate or engage in discussions or negotiations with such person making such Takeover Proposal and its Representatives (including to solicit a revised Takeover Proposal), in the case of each of clauses “(x)” and “(y),” if and only if: (1) there shall have been no material breach or approve or resolve to approve any Acquisition violation of the terms of this Section 6.6(a) in connection with such person making such Takeover Proposal; provided(2) prior to taking any action contemplated in clauses “(x)” or “(y)” with respect to such Person, the Company Board shall have determined in good faith (after consultation with outside counsel) that nothing the failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law and (3) contemporaneously with furnishing or making available any information to such person, the Company furnishes or makes available such information to Parent (to the extent not previously furnished or Made Available to Parent).
(b) Nothing contained in this Section 5.3 6.6 or any other provision hereof elsewhere in this Agreement shall prohibit the Company or the Company’s board of directors Company Board from (xi) taking and disclosing to the Company’s stockholders holders of Company Common Stock a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules 14d-9 and 14e-2 14e-2(a) promulgated under the Exchange Act, or (yii) from making such any disclosure to the Company’s stockholders as, holders of Company Common Stock if the Company Board has determined in the good faith judgment (after consultation with outside counsel) that the failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Company’s board of directorsCompany under applicable Law, or (iii) making any “stop, look and listen” communication pursuant to advice from independent legal counselRule 14d-9(f) promulgated under the Exchange Act; provided, is reasonably expected however, that: (A) this Section 6.6(b) shall not be deemed to be required under applicable law, provided that permit the Company may not, Board to make a Company Adverse Change Recommendation except as and to the extent permitted by Section 5.3(b6.1(b) or (c), withdraw ; and (B) any such communication or modify, or propose disclosure shall be deemed to withdraw or modify, be a Company Adverse Change Recommendation unless it is accompanied by a statement of the Company Board expressly reaffirming the Company Board Recommendation in connection with such communication or approve disclosure.
(c) In addition to the other obligations of the Company set forth in this Section 6.6, the Company shall promptly (within one (1) Business Day) notify Parent in writing of any Takeover Proposal or recommendTakeover Inquiry (and of any material amendments or modifications thereto), or propose to approve or recommend any Acquisition Proposal, or enter into any agreement request for information with respect to any Acquisition Takeover Proposal or Takeover Inquiry, that is received during the Pre-Closing Period, including the material terms and conditions of any Takeover Proposal, Takeover Inquiry or request received during the Pre-Closing Period (unless the Takeover Proposal or Takeover Inquiry is in written form, in which case the Company shall give Parent a copy thereof and any material amendments or modifications thereto) and the identity of the Person making such Takeover Proposal, Takeover Inquiry or request.
(d) The Company shall, and shall direct its Representatives to cease immediately all discussions and negotiations that commenced prior to the Agreement Date regarding any Takeover Proposal or Takeover Inquiry. Upon execution The Company also shall promptly (and in any event within three (3) Business Days following the Agreement Date) (A) request in writing that each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any portion thereof to return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any Company Subsidiary, and (B) cease furnishing or making available any non-public information regarding the Company or any of the Company Subsidiaries to such Person, including by prohibiting such Person from having access to any physical or electronic data rooms. Notwithstanding anything to the contrary herein, nothing in this AgreementSection 6.6(d) shall be deemed to prevent the Company, the Company will immediately cease Subsidiaries or their respective Representatives from taking any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” action otherwise permitted by Section 6.6(a) through (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined belowc), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Credit Agreement (RhythmOne PLC), Agreement and Plan of Merger and Reorganization (YuMe Inc)
No Solicitation. (a) The Company shall and its Subsidiaries will not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall will use its their best efforts not to permit) any affiliatecause their respective officers, officerdirectors, director or employee ofemployees and investment bankers, or any investment banker, attorney attorneys or other advisor agents retained by or representative (collectively, “Representatives”) acting on behalf of the Company or any of its Subsidiaries not to, (i) solicit or initiate, solicit or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, constitutes or may is reasonably be expected likely to lead to, to any Acquisition Proposal (as defined in Section 5.5(c) hereof), (ii) except as permitted below, engage in negotiations or discussions with, or furnish any information or data to any third party relating to an Acquisition Proposal, or (iii) except as permitted below, enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing . Notwithstanding anything to the contrary contained in this Section 5.3 5.5 or in any other provision hereof shall prohibit of this Agreement, the Company and its Board of Directors (i) may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with or furnish information to any third party making an unsolicited Acquisition Proposal (a "Potential Acquiror") or approve an unsolicited Acquisition Proposal if the Company’s board 's Board of directors Directors is advised by its financial advisor that such Potential Acquiror has the financial wherewith- 40 42 al to be reasonably capable of consummating such an Acquisition Proposal, and either (A) the Board determines in good faith, after receiving advice from its financial advisor, that such third party has submitted to the Company an Acquisition Proposal which is a Superior Proposal, or (xB) taking the Board determines in good faith, based upon advice of its outside legal counsel, that the failure to participate in such discussions or negotiations or to furnish such information or approve an Acquisition Proposal would violate the Board's fiduciary duties under applicable law, and disclosing (ii) shall be permitted to (X) take and disclose to the Company’s stockholders 's shareholders a position with respect to a any tender or exchange offer by a third party party, or amend or withdraw such position, pursuant to Rules 14d-9 and 14e-2 promulgated under of the Exchange Act, Act or (yY) making such make disclosure to the Company’s stockholders as's shareholders, in the good faith judgment case of clause (X) or clause (Y) either (1) with respect to or as result of a Superior Proposal, or (2) if the Company’s board 's Board of directorsDirectors determines in good faith, pursuant to based upon advice from independent of its outside legal counsel, that the failure to take such action would violate such Board's fiduciary duties under, or otherwise violate, applicable law. The Company agrees that any non-public information furnished to a Potential Acquiror will be pursuant to a confidentiality agreement substantially similar to the confidentiality provisions of the confidentiality agreement entered into between the Company and Parent. In the event that the Company shall determine to provide any information as described above, or shall receive any Acquisition Proposal, it shall promptly inform Parent in writing as to the fact that information is reasonably expected to be required under provided and shall furnish to Parent the identity of the recipient of such information and/or the Potential Acquiror and the terms of such Acquisition Proposal, except to the extent that the Board determines in good faith, based upon advice of its outside legal counsel, that any such action described in this sentence would violate such Board's fiduciary duties under, or otherwise violate, applicable law. The Company will keep Parent reasonably informed of the status (including amendments or proposed amendments) of any such Acquisition Proposal except to the extent that the Board determines in good faith, provided based upon advice of its outside legal counsel, that any such action would violate such Board's fiduciary duties under, or otherwise violate, applicable law.
(b) The Board of Directors of the Company may not, except as permitted by Section 5.3(b), shall not (i) withdraw or modify, modify or propose to withdraw or modify, in any manner adverse to Parent, the Company approval or recommendation of such Board Recommendation of Directors of this Agreement, the Offer or the Merger or (ii) approve or recommend, or propose to approve or recommend recommend, any Acquisition ProposalProposal unless, in each case, (A) the Board determines in good faith, after receiving advice from its financial advisor, that such Acquisition Proposal is a Superior Proposal or enter into any agreement with respect (B) the Board determines in good faith, based upon advice of its outside legal counsel, that the failure to any Acquisition Proposal. Upon execution take such action would violate Board's fiduciary duties under applicable law.
(c) For purposes of this Agreement, the Company will immediately cease "Acquisition Proposal" shall mean any existing activitiesbona fide proposal, discussions whether in writing or negotiations with any Person conducted heretofore with respect otherwise, made by a third party to any acquire beneficial ownership (as defined under Rule 13(d) of the foregoing. Notwithstanding Exchange Act) of all or a material portion of the foregoingassets of, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offeror any material equity interest in, the Company may furnish information concerning its businesses or its Subsidiariesmaterial Subsidiaries pursuant to a merger, properties consolidation or assets to any Person other business combination, sale of shares of capital stock, sale of assets, tender offer or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person exchange offer or group whether or not such Person or group has had previous discussions or negotiations with similar transaction involving the Company concerning a Superior Proposal (as defined below)or its material Subsidiaries including, provided that such Person without limitation, any single or group shall have entered into a confidentiality agreement, the confidentiality provisions multi-step transaction or series of related transactions which shall be no more favorable is structured to permit such third party than those provided for in to acquire beneficial ownership of any material portion of the Confidentiality Agreement (provided that such confidentiality agreement must permit assets of, or any material portion of the equity interest in, the Company to disclose to Parent all of or its material Subsidiaries (other than the information required to be disclosed by the Company to Parent transactions contemplated by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Healthsource Inc), Merger Agreement (Cigna Corp)
No Solicitation. (a) The Company Each Stockholder hereby agrees that during the term of this Agreement it shall not, nor and shall it not permit any of its Subsidiaries toSubsidiaries, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director Affiliates or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries Representatives to, (i) solicit or initiate, solicit, encourage or encourage, directly or indirectly, any inquiries relating to, or knowingly facilitate (including by way of providing information) the submission ofof any inquiries, any Acquisition Proposal, proposals or offers (iiwhether firm or hypothetical) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, other efforts or take any other action to knowingly facilitate the making of any proposal attempts that constitutes, constitute or may reasonably be expected to lead to, any Acquisition Proposal Proposal, (ii) have any discussions with or provide any confidential information or data to any person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, (iii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (iv) approve or recommend, or publicly propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, memorandum of understanding, merger agreement, asset or share purchase or share exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal, (v) enter into any agreement or agreement in principle requiring, directly or indirectly, the Company to abandon, terminate or fail to consummate the transactions contemplated by the Merger Agreement or breach its obligations thereunder, (vi) make or participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any Acquisition Proposal shares of Common Stock in connection with any vote or approve or resolve other action on any matter, other than to approve any Acquisition Proposal; provided, recommend that nothing contained stockholders of the Company vote in favor of the adoption of the Merger Agreement and as otherwise expressly provided in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange ActAgreement, or (yvii) making such disclosure publicly propose or agree to the Company’s stockholders as, in the good faith judgment do any of the Company’s board of directors, pursuant foregoing. Each Stockholder hereby agrees immediately to advice from independent legal counsel, is reasonably expected cease and cause to be required under applicable lawterminated any activities, provided that Company may not, except as permitted by Section 5.3(b), withdraw discussions or modify, or propose to withdraw or modify, negotiations conducted before the Company Board Recommendation or approve or recommend, or propose to approve or recommend date of this Agreement with any Acquisition Proposal, or enter into any agreement Persons other than Acquiror with respect to any Acquisition Proposal. Upon execution , and will take the necessary steps to inform its Affiliates and Representatives of the obligations undertaken by such Stockholder pursuant to this Agreement, the Company will immediately cease including this Section 4.3. Each Stockholder also agrees that any existing activities, discussions or negotiations with any Person conducted heretofore with respect to violation of this Section 4.3 by any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses Affiliates or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which Representatives shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required deemed to be disclosed a violation by the Company to Parent by such Stockholder of this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;4.3.
Appears in 2 contracts
Sources: Voting Agreement (optionsXpress Holdings, Inc.), Voting Agreement (Schwab Charles Corp)
No Solicitation. Each of the Shareholders hereby agrees:
(a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (from and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of after the Company or any of its Subsidiaries todate hereof until such Shareholder's Applicable Termination Time, (i) solicit not to, (ii) not to authorize or initiatepermit any of such Shareholder's affiliates or any of such Shareholder's or such Shareholder's affiliates' officers, directors, employees and partners to, (iii) not to authorize such Shareholder's or encourageany of such Shareholder's affiliates' agents or representatives to and (iv) to use all reasonable efforts to ensure that such Shareholder's and such Shareholder's affiliates' agents and representatives do not, directly or indirectly, (x) initiate, solicit or knowingly encourage or otherwise facilitate (including providing any inquiries nonpublic information relating to, to Company and its Subsidiaries) the making of an Acquisition Proposal or the submission of, any Acquisition Proposal, (iiy) participate engage in any discussions or negotiations regarding any Acquisition Proposalwith, or in connection with provide any Acquisition Proposalnonpublic information relating to Company and its Subsidiaries to, any Person relating to, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may would reasonably be expected to lead toto the making of, an Acquisition Proposal;
(b) to immediately cease and cause to be terminated all existing activities, discussions or negotiations by such Shareholder, any Acquisition Proposal of such Shareholder's affiliates or (iii) enter into any agreement of such Shareholder's or such Shareholder's affiliates' officers, directors, employees, partners, agents and representatives with any Person other than Parent with respect to any Acquisition Proposal or approve the solicitation or resolve to approve making of any Acquisition Proposal; provided;
(c) from and after the date hereof until such Shareholder's Applicable Termination Time, that nothing contained promptly notify Parent if any Person makes, or indicates an interest in this Section 5.3 making, an Acquisition Proposal to such Shareholder or any other provision hereof shall prohibit of such Shareholder's affiliates or to such Shareholder's or any of such Shareholder's affiliates' officers, directors, employees, partners, agents and representatives, and to include in such notice the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment identity of the Company’s board Person or group making or indicating an interest in making an Acquisition Proposal and the material terms and conditions of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any such Acquisition Proposal; and
(d) from and after the date hereof until such Shareholder's Applicable Termination Time, or not to enter into any agreement or understanding with respect to any person that provides for, or in any way facilitates, an Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease .
(e) This Section 1.4 shall not prevent any existing activities, discussions Shareholder or negotiations with any Person conducted heretofore with respect to any of its affiliates, officers, directors, employees, partners, agents or representatives who is a member of the foregoing. Notwithstanding the foregoing, prior to the time Board of acceptance Directors of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to from taking any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent actions otherwise prohibited by this Section 5.3) if:
(x) 1.4 to the extent that such Person or group has submitted a Superior Proposal;actions are expressly permitted by the Merger Agreement. For purposes of this Section 1.4, Company shall be deemed not to be an affiliate of any Shareholder.
Appears in 2 contracts
Sources: Voting Agreement (Eex Corp), Voting Agreement and Irrevocable Proxy (Newfield Exploration Co /De/)
No Solicitation. (a) The Company From and after the date hereof until the Expiration Date, each Shareholder shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to(a) solicit, initiate or knowingly encourage, induce or facilitate the communication, making, submission of, or announcement of any Acquisition Proposal, (ii) participate in any discussions Proposal or negotiations Acquisition Inquiry regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may could reasonably be expected to lead to, any to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (iiib) enter into furnish any agreement non-public information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (c) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or Inquiry regarding the Company’s board of directors from , (xd) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actapprove, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve endorse or recommend any Acquisition Proposal, (e) execute or enter into any agreement letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction regarding the Company (subject to Section 5.4 of the Merger Agreement), (f) take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (g) initiate a Shareholders’ vote or action by consent of the Company’s Shareholders with respect to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (h) except by reason of this Agreement, become a member of a “group” (as such term is defined in Section 13(d) of the Exchange Act) with respect to any Acquisition Proposal. Upon execution voting securities of this Agreement, the Company will immediately cease that takes any existing activities, discussions action in support of an Acquisition Proposal or negotiations with any Person conducted heretofore with respect Acquisition Inquiry regarding the Company or (i) propose or agree to do any of the foregoing. Notwithstanding In the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided event that such Person Shareholder is a corporation, partnership, trust or group other Entity, it shall have entered into a confidentiality agreementnot permit any of its Subsidiaries or Affiliates to, the confidentiality provisions nor shall it authorize any officer, director or other Representative of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all Shareholder or any of its Subsidiaries or Affiliates to, undertake any of the information required to be disclosed by the Company to Parent actions contemplated by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;7.
Appears in 2 contracts
Sources: Merger Agreement (Ikena Oncology, Inc.), Support Agreement (Ikena Oncology, Inc.)
No Solicitation. (a) The Company From and after May 9, 1999 until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, Xoom shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectivelyof, “Representatives”) of the Company Xoom or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, (i) take any inquiries relating toaction to solicit, initiate, encourage or knowingly facilitate any Material Transaction Proposal (as defined below) or the submission of, any Acquisition Proposal, of a Material Transaction Proposal or (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to, a Material Transaction Proposal; PROVIDED that, prior to obtaining the affirmative vote of the holders of a majority of the outstanding shares of common stock of Xoom to adopt the Xenon 2 Merger Agreement (the "XOOM STOCKHOLDER APPROVAL" and, together with the Xenon 2 Stockholder Approval, the "STOCKHOLDER APPROVALS"), in response to an unsolicited BONA FIDE Takeover Proposal, Xoom may, to the extent that the Board of Directors of Xoom determines in good faith based on the advice of outside legal counsel that such action is required to comply with their fiduciary duties under applicable law, (A) furnish information with respect to or provide access Xoom and its Subsidiaries to the properties person making such Takeover Proposal and its representatives and discuss such information with such person and its representatives and (B) participate in negotiations regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any request for information or any Material Transaction Proposal, the material terms and conditions of such request or Material Transaction Proposal and the identity of the Company person making any such request or Material Transaction Proposal, and will keep NBC fully informed on a current basis of the status and details of any such request or Material Transaction Proposal, PROVIDED that, prior to providing any information to any Person or participating in negotiations with any Person, Xoom shall have received an executed confidentiality agreement. Xoom will immediately cease and cause to be terminated any existing activities, discussions and negotiations conducted heretofore with respect to any Material Transaction Proposal.
(b) From and after May 9, 1999 until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Board of Directors of Xoom shall not (i) approve or recommend or propose publicly to approve or recommend any Material Transaction Proposal, (ii) cause or agree to cause Xoom or any of its Subsidiaries to enter into any agreement (including, without limitation, any letter of intent or agreement in principle) related to a Material Transaction Proposal or (iii) prior to the Xoom Stockholder Approval, withdraw or modify, in a manner adverse to NBC, the approval or recommendation of the Board of Directors of Xoom for the adoption of the Xenon 2 Merger Agreement or vote in favor of Xoom, as sole stockholder of Xenon 2, adopting the NMC Merger Agreement at the Xenon 2 Stockholder Meeting. Notwithstanding the foregoing, if the Board of Directors of Xoom receives a Takeover Proposal without having violated SECTION 5.5(A) hereof, the Board of Directors of Xoom may, prior to obtaining the Xoom Stockholder Approval, to the extent it determines in good faith based on the advice of outside legal counsel that such action is required to comply with their fiduciary duties under applicable law, take any action specified in clauses (i), (ii) or (iii) above with respect to such Takeover Proposal, but in each case only (x) at a time that is at least five (5) business days after receipt by NBC of written notice from Xoom advising NBC that the Board of Directors of Xoom has resolved to take such action and (y) if Xoom simultaneously therewith terminates this Agreement pursuant to SECTION 9.1(G) hereof. Nothing contained in this Agreement shall prohibit Xoom or its board of directors from complying with Rules 14D-9 and 14e-2 under the Exchange Act with respect to any Takeover Proposal.
(c) As used herein, "MATERIAL TRANSACTION PROPOSAL" means any inquiry, proposal or offer from any Person relating to (i) the direct or indirect acquisition or purchase of 20% or more of the assets (based on the fair market value thereof) of Xoom and its Subsidiaries, taken as a whole, or of 20% or more of any class of equity securities of Xoom or any of its Subsidiaries or any tender offer or exchange offer (including by Xoom or its Subsidiaries) that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Xoom or any of its Subsidiaries, or take (ii) any merger, consolidation, business combination, sale of all or substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving Xoom or any of its Subsidiaries other action to knowingly facilitate than the making of any proposal that constitutesTransactions contemplated by this Agreement; PROVIDED, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; providedHOWEVER, that nothing contained in this Section 5.3 no event shall any merger, consolidation, sale or similar transaction involving only Xoom and one or more of its wholly-owned subsidiaries or involving only any other provision hereof shall prohibit the Company two or the Company’s board more of directors from (x) taking and disclosing such wholly-owned subsidiaries be deemed to the Company’s stockholders be a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making Material Transaction Proposal if such disclosure to the Company’s stockholders as, transaction is not entered into in the good faith judgment violation of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution terms of this Agreement.. As used herein, the Company will immediately cease "TAKEOVER PROPOSAL" means any existing activitiesinquiry, discussions proposal or negotiations with offer from any Person conducted heretofore with respect relating to (A) any of the foregoing. Notwithstanding matters set forth in clause (i) of the foregoingdefinition of Material Transaction Proposal but replacing "20%" with "50%" each place "20%" is used in such definition, prior to the time (B) a sale of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses all or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent substantially all of the information required assets of Xoom and its Subsidiaries or (C) a merger or consolidation of Xoom as a result of which the stockholders of Xoom immediately prior to be disclosed by such transaction would not beneficially own immediately after such transaction 50% or more of the Company to Parent by this Section 5.3) if:
resulting or surviving entity (x) such Person or group has submitted a Superior Proposal;the parent thereof).
Appears in 2 contracts
Sources: Agreement and Plan of Contribution, Investment and Merger (General Electric Co), Agreement and Plan of Contribution, Investment and Merger (Xoom Inc)
No Solicitation. (a) The Company shall not, nor shall it permit any of and its Subsidiaries toand the officers, nor shall it authorize (--------------- directors, employees, agents, representatives and shall use advisors of Company and its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative Subsidiaries (collectively, “Company's "Representatives”") will not, directly or indirectly, (i) take any action to solicit, initiate, encourage (including by way of furnishing non-public information or furnishing any information, other than as required by applicable law, rules or regulations, in a manner which could reasonably be expected to assist a third party in formulating a Takeover Proposal), take any other action designed to facilitate or agree to any Takeover Proposal (as defined in Section 7.3(f) hereof) or (ii) subject to the next sentence, engage in negotiations with, or disclose any nonpublic information relating to Company or any of its Subsidiaries to, (i) solicit or initiateto any person that has advised Company that it may be considering making, or encouragethat has made, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition a Takeover Proposal, or in connection with any Acquisition Proposal, or furnish whose efforts to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably formulate a Takeover Proposal would be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposalassisted thereby; provided, that nothing contained in this Section 5.3 or any other provision hereof herein shall prohibit the Company or the Company’s board 's Board of directors Directors -------- from (x) taking and disclosing to the Company’s 's stockholders a position with respect to a an unsolicited tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, or (y) making such disclosure if an unsolicited written Takeover Proposal shall be received by the Board of Directors of Company, then, to the Company’s stockholders as, extent the Board of Directors of Company believes in the good faith judgment of the Company’s board of directors, pursuant to (after written advice from independent its financial advisor) that such Takeover Proposal would, if consummated, result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel, counsel that it is reasonably expected necessary for the Board of Directors of Company to be required comply with its fiduciary duties to stockholders under applicable law, Company and its Representatives may furnish in connection therewith information to the party making such Superior Proposal and engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event Company may not, except as permitted notifies Parent of such -------- determination by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation of Directors and provides Parent with a true and complete copy of the Superior Proposal received from such third party, and provides (or approve has provided) Parent with all documents containing or recommendreferring to non-public information of Company that are supplied to such third party; provided, further, that Company provides such non-public information pursuant to -------- ------- a non-disclosure agreement at least as restrictive on such third party as the Confidentiality Agreement (as defined in Section 5.4) is on Parent; provided, -------- further, however, that Company shall not, and shall not permit any of its ------- officers, directors, employees or other representatives to agree to or endorse any Takeover Proposal or withdraw its recommendation of the Merger unless Company has provided Parent at least five (5) days prior notice thereof. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Takeover Proposal or any notice that any person is considering making a Takeover Proposal or any request for non-public information relating to Company or any of its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person that has advised Company that it may be considering making, or propose to approve or recommend any Acquisition that has made, a Takeover Proposal, or enter into whose efforts to formulate a Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any agreement such Takeover Proposal notice, request or any correspondence or communications related thereto and shall provide Parent with respect to any Acquisition Proposala true and complete copy of such Takeover Proposal notice or request or correspondence or communications related thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Upon execution of this Agreement, the Company will shall immediately cease any and cause to be terminated all existing activities, discussions discussion or negotiations with any Person persons conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Takeover Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (E Trade Group Inc), Merger Agreement (E Trade Group Inc)
No Solicitation. (a) The Company shall not, nor shall it permit any of and its Subsidiaries shall, and shall cause each of their Representatives to, nor immediately cease any and all existing activities, discussions or negotiations with any Persons (other than Parent and Merger Sub) conducted heretofore with respect to any Acquisition Proposal or Acquisition Transaction. The Company shall it authorize promptly (and in any event within three (3) Business Days following the date hereof) request in writing to each Person (other than Parent and Merger Sub) which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any portion thereof to return all confidential information heretofore furnished to such Person by or on behalf of the Company, and the Company shall use its reasonable best efforts not to permithave such information returned or destroyed (to the extent destruction of such information is permitted by such confidentiality agreement) and to enforce the provisions of any affiliate, officer, director or employee of, or any investment banker, attorney “standstill” or other advisor or representative (collectively, “Representatives”) of similar agreement between the Company or any of its Subsidiaries and any Person (other than Parent). Such written requests shall contain a notice to each Person that any information that is sent to the Company in the future will not be treated as confidential pursuant to such confidentiality agreement.
(b) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VII and the Effective Time, the Company and its Subsidiaries shall not, and shall use their reasonable best efforts to cause each of their respective Representatives to (and shall not authorize or permit them to, (i) solicit or initiate, or encourage), directly or indirectly:
(i) solicit, any inquiries relating toinitiate, knowingly encourage, facilitate or induce the making, submission or announcement of, any an Acquisition Proposal, ;
(ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information or data with respect relating to or provide access to the properties of the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub), or take any other action that is intended or would be reasonably expected to knowingly assist or facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected could lead to lead to, any an Acquisition Proposal or an Acquisition Transaction;
(iii) enter into participate or engage in discussions or negotiations with any agreement with respect Person that is seeking to any make or has made an Acquisition Proposal except to state that such discussions or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party negotiations are not permitted pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actthese provisions;
(iv) approve, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve endorse or recommend, or propose to approve approve, endorse or recommend any recommend, an Acquisition Proposal, Proposal or an Acquisition Transaction;
(v) enter into any letter of intent, memorandum of understanding or other Contract contemplating or otherwise relating to an Acquisition Proposal or an Acquisition Transaction;
(vi) terminate, amend or waive any rights under (or fail to enforce by seeking an injunction or by seeking to specifically enforce the terms of) any confidentiality or “standstill” or other similar agreement between the Company or any of its Subsidiaries and any other Person;
(vii) take any action to exempt any Person, other than Parent and Merger Sub, from Section 23B.19 of the WBCA or any other applicable Takeover Law; or
(viii) agree to do any of the foregoing, or propose to do any of the foregoing other than pursuant to Section 5.1(c) in accordance with respect the terms thereof.
(c) Notwithstanding the provisions of Section 5.1(b), subject to any Acquisition Proposal. Upon execution the Company’s compliance with the provisions of this AgreementSection 5.1, at any time prior to receipt of the Requisite Company Shareholder Approval, the Company will immediately cease any existing activitiesBoard may (directly or indirectly through advisors, agents or other intermediaries) (x) engage or participate in discussions or negotiations with any Person conducted heretofore that has made (and not withdrawn) a bona fide, written Acquisition Proposal after the date hereof that (A) did not result from a breach of this Section 5.1, (B) does not violate the terms of any standstill, non-disclosure or other similar Contract with respect the Company or any of its Affiliates, (and (C) the Company Board concludes in good faith (after consultation with the Financial Advisor or any other financial advisor of nationally recognized standing and outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal, and/or (y) furnish any non-public information relating to the Company or any of its Subsidiaries to any Person that has made (and not withdrawn) a bona fide, written Acquisition Proposal after the date hereof that (A) did not result from a breach of this Section 5.1, (B) does not violate the terms of any standstill, non-disclosure or other similar Contract with the Company or any of its Affiliates, and (C) the Company Board concludes in good faith (after consultation with the Financial Advisor or any other financial advisor of nationally recognized standing and outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal, provided, however, that in the case of clauses (x) or (y):
(i) none of the foregoing. Notwithstanding the foregoingCompany or any of its Subsidiaries shall have breached or violated (or be deemed, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offerterms of this Section 5.1, to have breached or violated) the terms of this Section 5.1;
(ii) the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” Board determines in good faith (as defined in after consultation with outside legal counsel) that the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with failure of the Company concerning Board to take such action would reasonably be expected to constitute a Superior Proposal breach of its fiduciary duties to the shareholders of the Company under Washington Law;
(as defined below), provided that such Person or group shall have iii) the Company has entered into a confidentiality agreement, agreement with the confidentiality Person making such Acquisition Proposal containing terms and provisions that (A) are at least as protective of which shall be no more favorable to such third party than the Company as those provided for contained in the Confidentiality Agreement (provided disregarding any amendment made pursuant to Section 5.8), (B) expressly permit the Company to comply with the terms of this Section 5.1 and Section 5.6(b) and (C) include “standstill” restrictions that are the same as those set forth in Section 11 of the Confidentiality Agreement but exclude the last paragraph of such section; provided, however, that such confidentiality agreement must permit may provide that any such Person may make a confidential proposal regarding an Acquisition Transaction directly to the Company Board, notwithstanding such “standstill” restrictions;
(iv) at least twenty-four (24) hours prior to disclose engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Person, the Company gives Parent written notice of the identity of such Person and the material terms and conditions of such Acquisition Proposal (and if such Acquisition Proposal is in written form, the Company shall give Parent a true and complete copy thereof along with any other written materials provided in connection therewith) and of the Company’s intention to engage or participate in discussions or negotiations with, or furnish non-public information to, such Person; and
(v) contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent all of (to the extent such information required to be disclosed has not been previously furnished by the Company to Parent by this Section 5.3) if:Parent).
(xd) The Company shall promptly, and in all cases within twenty four (24) hours of its receipt, notify Parent orally and in writing of (i) any Acquisition Proposal received by the Company or any of its Representatives, (ii) any request for information received by the Company or any of its Representatives that could lead to an Acquisition Proposal, or (iii) any inquiry received by the Company or any of its Representatives with respect to, or which could lead to, any Acquisition Proposal. The foregoing notice shall include the material terms and conditions of any such Acquisition Proposal, request or inquiry and the identity of the Person or group has submitted making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent promptly and reasonably informed of the status, details, terms and conditions (including all amendments or proposed amendments) of any such Acquisition Proposal, request or inquiry.
(e) In addition to the foregoing, the Company shall provide Parent with at least twenty-four (24) hours prior written notice of a Superior meeting of the Company Board (or any committee thereof) at which the Company Board (or any committee thereof) is reasonably expected to consider an Acquisition Proposal;, an inquiry relating to a potential Acquisition Proposal, or a request to provide non-public information to any Person.
(f) The Company shall not (and shall cause its Subsidiaries not to) enter into any letter of intent, memorandum of understanding or Contract subsequent to the date of this Agreement that prohibits the Company from providing the information described in this Section 5.1.
(g) Without limiting the generality of the foregoing, Parent, Merger Sub and the Company acknowledge and hereby agree that any action taken by any Representatives of the Company or any of its Subsidiaries that would be a breach of the restrictions set forth in this Section 5.1 if taken by the Company shall be deemed to be a breach of this Section 5.1 by the Company for all purposes of and under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Market Leader, Inc.)
No Solicitation. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize not (and shall not resolve or propose to) directly or indirectly, and shall ensure that each other Acquired Corporation and all Representatives of the Acquired Corporations do not (and do not resolve or propose to) directly or indirectly (other than with respect to Parent and Acquisition Sub): (i) solicit, initiate, encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry (including by approving any transaction or any Person (other than Parent and its Affiliates) under or pursuant to any applicable Takeover Statute) or take any action that could reasonably be expected to lead to an Acquisition Proposal; (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; or (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry.
(b) Notwithstanding anything to the contrary contained in Section 5.3(a), prior to the Acceptance Time, Section 5.3(a) shall not prohibit the Company from furnishing non-public information regarding the Acquired Corporations to, or entering into discussions or negotiations with, any Person in response to (and in connection with) an unsolicited bona fide Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn) if: (i) no Acquired Corporation and no Representative of any Acquired Corporation shall have breached or taken any action inconsistent with any of the provisions of this Section 5.3; (ii) such Acquisition Proposal constitutes a Superior Offer; (iii) the board of directors of the Company determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that such action is required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company’s shareholders under applicable law; (iv) at least two business days prior to furnishing any such non-public information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish non-public information to, or enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use its best efforts and disclosure of all non-public written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions (which shall in no event be less favorable to the Company than the “standstill” provisions included in the Confidentiality Agreement), and containing other provisions no less favorable to the Company than the provisions of the Confidentiality Agreement; and (v) prior to or concurrently with furnishing any such non-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action inconsistent with any of the provisions set forth in the preceding sentence that is taken by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of Section 5.3(a) by the Company.
(c) If the Company or any other Acquired Corporation or any of their respective Representatives receives an Acquisition Proposal or Acquisition Inquiry or any request for non-public information at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 24 hours after receipt of such Acquisition Proposal, Acquisition Inquiry or request) advise Parent orally and in writing of such Acquisition Proposal, Acquisition Inquiry or request (including the identity of the Person making or submitting such Acquisition Proposal, Acquisition Inquiry or request, the material terms and conditions thereof, and, if available, any written documentation received by such Acquired Corporation setting forth such terms and conditions). The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, Acquisition Inquiry or request and any modification or proposed modification thereto and shall promptly (and in no event later than 24 hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to this Section 5.3.
(d) The Company shall, and shall ensure that each other Acquired Corporation and all Representatives of the Acquired Corporations, immediately cease and cause to be terminated any existing solicitation, encouragement, discussions or negotiations with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(e) The Company agrees not to permitrelease or permit the release of any Person from, or to amend or waive or permit the amendment or waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Corporations is or becomes a party or under which any of the Acquired Corporations has or acquires any rights, and will use commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent. The Company also shall promptly: (i) request each Person that has executed a confidentiality agreement in connection with its consideration of a possible Acquisition Proposal or equity investment to return or destroy all confidential information heretofore furnished to such Person by or on behalf of any affiliateof the Acquired Corporations; and (ii) prohibit any third party from having access to any physical or electronic data rooms relating to a possible Acquisition Proposal.
(f) Except as permitted by Section 5.3(g), officerneither the board of directors of the Company nor any committee thereof shall: (i)(A) withdraw or modify in a manner adverse to Parent or Acquisition Sub, director or employee publicly propose to withdraw or modify in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation (it being understood that the Company Board Recommendation shall be deemed to have been modified in a manner adverse to Parent if it shall no longer be unanimous); or (B) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any investment bankerAcquisition Proposal, attorney or other advisor resolve, agree or representative propose to take any of the actions contemplated by clauses “(collectivelyA)” or “(B)” (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”); or (ii) approve or recommend, “Representatives”) of or publicly propose to approve or recommend, or cause or permit the Company or any of its Subsidiaries to, (i) solicit to execute or initiate, or encourage, directly or indirectlyenter into, any inquiries letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or relating to, or that is intended to, contemplates or is reasonably likely to result in, an Acquisition Transaction, other than a confidentiality agreement referred to in Section 5.3(b) (an “Acquisition Agreement”) or resolve, agree or propose to take any such action.
(g) Notwithstanding anything to the submission ofcontrary contained in Section 5.3(f), the board of directors of the Company may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change and thereafter may cause the Company to terminate this Agreement in accordance with Section 8.1(f) and concurrently with such termination cause the Company to enter into a Specified Definitive Acquisition ProposalAgreement in accordance and subject to compliance with the provisions of Section 8.1(f), if: (i) an unsolicited bona fide, written Acquisition Proposal that did not otherwise result from a breach of the provisions of this Section 5.3 is made to the Company and is not withdrawn; (ii) participate the Company’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes a Superior Offer; (iii) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that, in light of such Superior Offer, an Adverse Recommendation Change is required in order for the Company’s board of directors to comply with its fiduciary obligations to the Company’s shareholders under applicable Legal Requirements; (iv) prior to effecting such Adverse Recommendation Change, the Company’s board of directors shall have given Parent at least three days’ written notice: (A) that it has received a Superior Offer not in violation of the provisions of this Section 5.3; (B) that it intends to make an Adverse Recommendation Change; and (C) specifying the material terms and conditions of such Superior Offer, including the identity of the Person making such offer (and attaching the most current and complete version of any discussions written agreement or negotiations regarding other document relating thereto) (it being understood and agreed that any Acquisition Proposal, or change to the consideration payable in connection with such Superior Offer or any Acquisition Proposalother material modification thereto shall require a new three days’ advance written notice by the Company); (v) during any such three day notice period(s), or furnish if requested by Parent, the Company engages in good faith negotiations with Parent to amend this Agreement in such a manner that no Adverse Recommendation Change is legally required as a result of such Superior Offer; and (vi) at the end of any Person any information or data with respect such three day notice period, the failure to or provide access make an Adverse Recommendation Change would still constitute a breach of the fiduciary obligations of the Company’s board of directors to the properties Company’s shareholders under applicable Legal Requirements in light of such Superior Offer (taking into account any changes to the terms of this Agreement proposed by Parent as a result of the negotiations required by clause “(v)” or otherwise).
(h) Notwithstanding anything to the contrary contained in Section 5.3(f), the board of directors of the Company may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or any arise after the date of its Subsidiariesthis Agreement a material event, material development or take any other action material change in circumstances that relates to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect Acquired Corporations but does not relate to any Acquisition Proposal that was not known to any of the Acquired Corporations on the date of this Agreement (or approve if known, the consequences of which are not known to or resolve reasonably foreseeable by the Acquired Corporations as of the date hereof), which event, development or change in circumstance, or any material consequences thereof, becomes known to approve the Acquired Corporations prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to an Acquisition ProposalProposal being referred to as an “Intervening Event”); provided(ii) no Acquired Corporation, and no Representative of any Acquired Corporation, had Knowledge, as of the date of this Agreement, that nothing there was a reasonable possibility that such Intervening Event could occur or arise after the date of this Agreement; (iii) the Company provides Parent, at least two business days prior to any meeting of the Company’s board of directors at which such board of directors will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change pursuant to clause “(A)” of the definition of Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that, in light of such Intervening Event, an Adverse Recommendation Change pursuant to clause “(A)” of the definition of Adverse Recommendation Change is required in order for the Company’s board of directors to comply with its fiduciary obligations to the Company’s shareholders under applicable Legal Requirements; (v) no Adverse Recommendation Change pursuant to clause “(A)” of the definition of Adverse Recommendation Change has been made for five business days after receipt by Parent of a written notice from the Company confirming that the Company’s board of directors has determined that the failure to make such an Adverse Recommendation Change in light of such Intervening Event would constitute a breach of its fiduciary obligations to the Company’s shareholders under applicable Legal Requirements; (vi) during such five business day notice period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend this Agreement in such a manner that no such Adverse Recommendation Change is legally required as a result of such Intervening Event; and (vii) at the end of such five business day notice period, the failure to make such Adverse Recommendation Change would still constitute a breach of the fiduciary obligations of the Company’s board of directors to the Company’s shareholders under applicable Legal Requirements in light of such Intervening Event (taking into account any changes to the terms of this Agreement proposed by Parent as a result of the negotiations required by clause “(vi)” or otherwise).
(i) Nothing contained in this Section 5.3 or any other provision hereof elsewhere in this Agreement shall prohibit the Company or the Company’s board of directors from from: (xi) taking and disclosing to the Company’s stockholders its shareholders a position with respect to a tender contemplated by Rule 14d-9 or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange Act, ; or (yii) making such any disclosure to its shareholders if the board of directors of the Company determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that failure to do so would be a breach of its fiduciary obligations to the Company’s stockholders asshareholder under applicable Legal Requirements; provided, however, that this Section 5.3(i) shall not be deemed to permit the board of directors of the Company to make an Adverse Recommendation Change or take any of the actions referred to in clause “(ii)” of Section 5.3(f) except, in each case, to the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as extent permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder5.3(g) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined belowSection 5.3(h), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;.
Appears in 2 contracts
Sources: Merger Agreement (Applied Materials Inc /De), Merger Agreement (Applied Materials Inc /De)
No Solicitation. (a) The Company TARGET shall not, nor shall it permit any of --------------- its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) or permit any affiliate, officer, director or of employee of, or any investment banker, attorney or other advisor or representative (collectivelyof, “Representatives”) of the Company TARGET or any of its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries relating to, or encourage the submission of, any Acquisition Proposal, Takeover Proposal or (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposalregarding, or furnish to any Person person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiariesto, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Takeover Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit however, that, subject to compliance with subsection (c) below and after receiving the Company or the Company’s board written opinion of directors from (x) taking and disclosing independent outside legal counsel to the Company’s stockholders effect that the failure to do so would constitute a position with respect breach by the TARGET Board of Directors of its fiduciary duties to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required TARGET shareholders under applicable law, provided TARGET may, in response to an unsolicited Takeover Proposal that Company may not(i) was not received in violation of this Section 7.8, except as permitted by Section 5.3(b)(ii) is not subject to financing and (iii) the TARGET Board of Directors determines in good faith, withdraw or modifyafter receipt of a written opinion of a financial advisor of nationally recognized reputation to such effect, or propose would result in a transaction more favorable to withdraw or modifyTARGET shareholders than the Merger, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement (A) furnish information with respect to TARGET to any Acquisition Person pursuant to a confidentiality agreement and (B) participate in negotiations regarding such Takeover Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding Without limiting the foregoing, prior to it is understood that any violation of the time restrictions set forth in the immediately preceding sentence by any executive officer of acceptance TARGET or any of Company Common Stock for payment pursuant to the Offerits Subsidiaries or any investment banker, the Company may furnish information concerning its businesses attorney or other advisor or representative of TARGET or any of its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions person is purporting to act on behalf of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;TARGET or
Appears in 2 contracts
Sources: Merger Agreement (Abc Bancorp), Merger Agreement (Abc Bancorp)
No Solicitation. (a) The Company shall agrees that it will not, nor shall it permit any of and will cause its Subsidiaries and its and its Subsidiaries’ officers, directors, agents, advisors and affiliates not to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (i) solicit or initiate, solicit, encourage or encourage, directly knowingly facilitate inquiries or indirectly, any inquiries relating proposals with respect to, or the submission ofengage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal, (ii) or waive any provision of or amend the terms of the Company Rights Agreement, in respect of an Acquisition Proposal; provided that, in the event Company receives an unsolicited Acquisition Proposal and the Board of Directors of Company concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Board of Directors of Company concludes in good faith (and based on the advice of counsel) that failure to take such actions would more likely than not result in a violation of its fiduciary duties under applicable law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement as entered into on September 26, 2008, and it shall simultaneously provide Parent with any such nonpublic information to the extent it has not previously provided such information to Parent. Company will immediately cease and cause to be terminated any activities, discussions or negotiations regarding any Acquisition Proposal, or in connection conducted before the date of this Agreement with any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any persons other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iii) enter into any agreement than Parent with respect to any Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or approve similar agreement relating to an Acquisition Proposal. Company will promptly (within two business days) advise Parent following receipt of any Acquisition Proposal and the substance thereof (including the identity of the person making such Acquisition Proposal), and will keep Parent apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis.
(b) Nothing contained in this Agreement shall prevent Company or resolve its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to approve any an Acquisition Proposal; provided, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company’s board of directors from (x) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (y) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group whether or not such Person or group has had previous discussions or negotiations with the Company concerning a Superior Proposal (as defined below), provided that such Person Rules will in no way eliminate or group shall have entered into a confidentiality agreement, modify the confidentiality provisions of which shall be no more favorable effect that any action pursuant to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by Rules would otherwise have under this Section 5.3) if:
(x) such Person or group has submitted a Superior Proposal;Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wachovia Corp New), Merger Agreement (Wachovia Corp New)