No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (Sculptor Capital Management, Inc.), Merger Agreement (Rithm Capital Corp.), Merger Agreement (Sculptor Capital Management, Inc.)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company DOCP shall not, and nor shall it permit any DOCP Subsidiary, or its or any DOCP Subsidiary officers, directors, employees, agents or representatives (iincluding, without limitation, any investment banker, attorney or accountant) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, initiate, solicit or encourage, directly or indirectly: (A) solicit, initiateany inquiries or the making of any proposal with respect to an Alternative Transaction, seek engage in any discussions or knowingly encourage (including by way of furnishing non-public negotiations concerning, or provide to any other person any information or data relating to it or any Acquired Company) DOCP Subsidiary for the purposes of, or otherwise cooperate in any inquiryway with or assist or participate in, discussionfacilitate or encourage, offer any inquiries or request that the making of any proposal which constitutes, or could may reasonably be expected to lead to, a proposal to seek or effect an Acquisition Alternative Transaction, or agree to or endorse any Alternative Transaction; provided, however, that nothing contained in this Section shall prohibit DOCP or the DOCP Board from taking and disclosing to its shareholders a position as required by Exchange Act Rule 14e-2; and provided further that, prior to acceptance for payment of any DOCP Shares pursuant to the Offer, the DOCP Board, on behalf of DOCP, may, in response to an unsolicited, bona fide Superior Proposal, furnish information or data (Bincluding confidential information or data) enter into, continue or otherwise relating to DOCP and participate in negotiations with a person making such unsolicited Superior Proposal, but only after such person enters into arrangements regarding confidentiality on terms at least as favorable to DOCP as the confidentiality arrangements contained herein and only in the event that (a) the DOCP Board determines in good faith, on the basis of advice of independent counsel furnished prior thereto to Buyer, that such action is legally required by the fiduciary obligations of the DOCP Board and (b) DOCP advises Buyer of its intention to make such determination to do so prior thereto. DOCP shall promptly advise Buyer of, and communicate the terms of, any discussions or negotiations withproposal respecting an Alternative Transaction it may receive, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could inquiries it receives which may reasonably be expected to lead toto a proposal respecting an Alternative Transaction, an Acquisition Proposaland the identity of the person making such proposal. Prior to taking any such action, (C) grant if DOCP intends to participate in any waiversuch discussion or negotiation or provide any such information or data to any such third party, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding it shall give reasonable notice to Buyer and shall consult, and thereafter shall continue to consult, with Buyer. Notwithstanding the foregoing, the Company nothing in this Section 6.2 shall be permitted (a) permit DOCP to grant a waiver of or terminate enter into any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to or to facilitate an Alternative Transaction during the term of this Agreement (it being understood that DOCP shall not enter into any Acquisition Proposal agreement with any person that provides for, or in any way facilitates, the development of a proposal for an Alternative Transaction, other than an Acceptable Confidentiality Agreement a confidentiality agreement in accordance with Section 6.02(ccustomary form in respect of a Superior Proposal as described above) or (an “b) affect any other obligation of DOCP under this Agreement. "Alternative Acquisition Agreement”); Transaction" means a transaction or series of related transactions resulting in (Ea) take any action to exempt change of control of DOCP, (b) any Third Party from the restrictions on “business combinations” contained merger or consolidation of DOCP in Section 203 which another person acquires 25% or more of the DGCL aggregate voting power of all voting securities of it or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolvethe surviving corporation, agree, authorize or commit to do any of the foregoing.as the
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Delaware Otsego Corp), Merger Agreement (Delaware Otsego Corp), Merger Agreement (CSX Corp)
No Solicitation. Except (a) The Company shall immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as permitted by this Section 6.02, during the period from defined below). From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company shall not, and nor shall (i) cause it permit any of its Subsidiaries and the respective subsidiaries to, nor shall it authorize or permit any of its officers, directors and officers or employees or any affiliate, investment banker, financial advisor, attorney, accountant or other representative retained by it or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not subsidiaries to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating which has not been previously publicly disseminated), or take any other action designed to facilitate, any Acquired Company) inquiries or the making of any inquiry, discussion, offer or request that proposal which constitutes, or could may reasonably be expected to lead to, an Acquisition Proposal, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Takeover Proposal; provided, or furnish any non-public information relating -------- however, that if, prior to the Acquired Companies to, Expiration Date and following the receipt of a ------- Superior Proposal (as hereinafter defined) or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could a proposal which is reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release to a Superior Proposal that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingthis Agreement, the Company shall be permitted to grant a waiver Board of or terminate any “standstill” or similar agreement or obligation Directors of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after considering applicable provisions of state law and after consultation with its outside financial and outside legal advisorscounsel, that a failure to take such action do so would be inconsistent with constitute a breach of its fiduciary duties to the Company's stockholders under Applicable Lawapplicable law, the Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(c), (Dx) furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a customary confidentiality agreement, provided that (i) such confidentiality agreement must not be less favorable to the Company than the confidentiality agreement between Parent and the Company, dated as of May 17, 2000 (the "Confidentiality Agreement"), and may not include any provision calling for an exclusive right to negotiate with the Company and (ii) the Company advises Parent of all such nonpublic information delivered to such person concurrently with its delivery to the requesting party, and (y) participate in discussions and negotiations with such party regarding such Takeover Proposal. It is agreed that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any of its subsidiaries or any affiliate, director or investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries, shall be deemed to be a breach of this Section 5.2(a) by the Company.
(b) Except as expressly permitted in this Section 5.2, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval, determination of advisability, or recommendation by such Board of Directors or such committee of the Transactions, (ii) approve, endorse, recommend or enter intodetermine to be advisable, or recommend, or propose publicly propose to approve, endorsedetermine to be advisable, recommend or recommend, any Takeover Proposal or (iii) cause the Company to enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect similar agreement (each, an "Acquisition Agreement") related to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Expiration Date the Board of Directors of the Company determines in good faith to do so, in response to a Superior Proposal that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of this Agreement, after considering applicable provisions of state law and after consultation with outside counsel, that the failure to do so would constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors of the Company may (subject to this and the following sentences and to compliance with Section 5.2(a)) (x) withdraw or modify its approval, determination, or recommendation of the Transactions, (y) approve, determine to be advisable, or recommend a Superior Proposal, or (z) cause the Company to enter into an Acquisition Agreement; provided, however, that any actions -------- ------- described in clauses (x), (y) or (z) may be taken only at a time that is after (A) the fifth business day following Parent's receipt of written notice (the "Offer Notice") from the Company advising Parent that the Board of Directors of the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal and providing notice of the determination of the Board of Directors of the Company of what action referred to herein the Board of Directors of the Company has determined to take and (B) the Company shall have provided Parent and Purchaser for at least five (5) business days following receipt of the Offer Notice an opportunity to amend this Agreement to provide for terms and conditions no less favorable (in the good faith determination of the Board of Directors of the Company after consultation with its financial and legal advisors) than the contemplated Superior Proposal, in which event the Company shall cause the Financial Advisor and its legal counsel to negotiate in good faith with Parent to make such adjustments to the terms and conditions of this Agreement as would enable Parent and Purchaser to proceed with the transactions contemplated hereby, as so amended. The provisions of the immediately preceding proviso shall apply to successive Superior Proposals.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.2, the Company shall promptly advise Parent orally and in writing of any request for confidential information or of any Takeover Proposal, the material terms and conditions of such request or the Takeover Proposal and the identity of the person making such request or Takeover Proposal and shall keep Parent promptly advised of all significant developments which could reasonably be expected to culminate in the Board of Directors of the Company withdrawing, modifying or amending its recommendation of the Offer, the Merger and the transactions contemplated by this Agreement or in exercising any of its other than an Acceptable Confidentiality Agreement rights under Section 5.2(a) or (b).
(d) Nothing contained in this Section 5.2 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders; provided, however, neither the Company -------- ------- nor its Board of Directors nor any committee thereof shall, except as in accordance with Section 6.02(c5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination or recommendation with respect to the Transactions or approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal.
(e) (an “Alternative Acquisition For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 3 contracts
Sources: Merger Agreement (Emusic Com Inc), Merger Agreement (Emusic Com Inc), Merger Agreement (Universal Music Group Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from From the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company shall not, will not and shall (i) will cause its Subsidiaries and the respective directors officers, directors, employees, investment bankers, consultants and officers other agents of each Acquired Company and (ii) instruct its Subsidiaries and use its reasonable best efforts to cause the other Representatives Affiliates of each Acquired Company over which Company exercises control not to, directly or indirectly: (A) , take any action to solicit, initiate, seek encourage or knowingly encourage (including by way facilitate the making of furnishing non-public information relating to any Acquired Company) Acquisition Proposal or any inquiry, discussion, offer inquiry with respect thereto or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate engage in any discussions or negotiations withwith any Person with respect thereto, or furnish disclose any non-public information relating to the Acquired Companies to, Company or any Subsidiary of Company or afford access to the properties, books or records of Company or officers any Subsidiary of the Acquired Companies Company to, any Third Party, Person that has made or is considering making any Acquisition Proposal; provided that nothing contained in each case, with respect this Section 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 so long as prior to furnishing non-public information to, or entering into discussions or negotiations with, such Person, (i) the Board of Directors of the Company by a majority vote determines in its good faith judgement that could reasonably it is necessary to do so to comply with its fiduciary duty to shareholders under applicable law, after receiving the advice of an outside legal counsel, and (ii) Company receives from such Person an executed confidentiality agreement with terms no less favorable to Company than those contained in the Parent Confidentiality Agreement. Nothing contained in this Agreement shall prevent the Board of Directors of Company from complying with Rule 14e-2 under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Company shall not recommend that the shareholders of Company tender their shares in connection with a tender offer except to the extent the Board of Directors of Company by a majority vote determines in its good faith judgment that such a recommendation is required to comply with the fiduciary duties of the Board of Directors to shareholders under applicable law, after receiving the advice of an outside legal counsel. Company will promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal) notify (which notice shall be expected provided orally and in writing and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof) Parent after receipt of any Acquisition Proposal, indication that any Person is considering making an Acquisition Proposal or any request for nonpublic information relating to lead toCompany or any Subsidiary of Company or for access to the properties, books or records of Company or any Subsidiary of Company by any Person that may be considering making, or has made, an Acquisition Proposal, (C) grant any waiver, amendment or release . Company will keep Parent fully informed of the status and material terms of any Third Party under any standstill such Acquisition Proposal or confidentiality agreement; provided that notwithstanding request. In furtherance and not in limitation of the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation give Parent at least 24 hours' advance notice of any Third Party information to be supplied to, and at least 48 hours' advance notice of any agreement to be entered into with, any Person making such Acquisition Proposal (attaching the most current version of such agreement to such notice). Company will, and will cause its Subsidiaries and the officers, directors, employees and other agents of Company and its Subsidiaries and the Affiliates of Company over which Company exercises control to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation date hereof with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract parties with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingProposal.
Appears in 3 contracts
Sources: Merger Agreement (Arbor Drugs Inc), Merger Agreement (CVS Corp), Merger Agreement (CVS Corp)
No Solicitation. Except as permitted NSB shall not nor shall it permit any officer, director or employee of NSB, or any investment banker, attorney, accountant or other representative retained by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not NSB to, directly or indirectly: (A) , solicit, initiateencourage, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate engage in any discussions or negotiations with, or furnish respond favorably to requests for information, inquiries, or other communications from, any non-public information relating person other than First Star concerning the fact of, or the terms and conditions of, this Agreement, or concerning any acquisition of NSB, or any assets or business of NSB, except that NSB's officers and directors may respond to inquiries from depositors in the ordinary course of business. Notwithstanding anything to the Acquired Companies contrary contained in this Section 5.08, the NSB Board of Directors may furnish information to, or afford access enter into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal to the books merge, consolidate, buy all or records or officers substantially all of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver assets of or terminate any “standstill” or similar agreement or obligation of any Third Party otherwise acquire NSB if and only to the extent such agreement or obligation prohibits a confidential proposal being made to that (i) the Company NSB Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors determines in good faith, after consultation faith with its outside financial and outside legal advisors, the advice of counsel to NSB that failure to take such action would be inconsistent is required to comply with its fiduciary duties under Applicable Law, to members imposed by law; (Dii) approve, endorse, recommend or enter intoprior to finishing such information to, or publicly propose entering into discussions or negotiations with such person or entity, unless it would be a breach of fiduciary obligations to approvedo so, endorseNSB provides written notice to First Star to the effect that it is furnishing information to, recommend or enter intoentering into discussions or negotiations with, such person or entity, with such written notice to contain, at a minimum, the identity of the persons submitting the proposal, a copy of any written inquiry or other communication, the terms of any proposal, any letter information requested or discussions sought to be initiated and the status of intentany requests, memorandum negotiations or expressions of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect interest; and (iii) NSB continues to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 keep First Star informed of the DGCL status of any such discussions or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingnegotiations.
Appears in 3 contracts
Sources: Merger Conversion Agreement (First Star Bancorp Inc), Merger Conversion Agreement (First Star Bancorp Inc), Merger Conversion Agreement (First Star Bancorp Inc)
No Solicitation. Except as permitted by this Section 6.02(a) None of Target, during the period from the date its Subsidiaries or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of this Agreement until the earlier Target or any of the Effective Time its Subsidiaries shall directly or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall indirectly (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage encourage, facilitate (including by way of furnishing non-public information relating information) or take any other action designed to facilitate any Acquired Companyinquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transaction involving Target or any inquiryof its Subsidiaries that, discussionif consummated, offer would constitute an Alternative Transaction (any of the foregoing inquiries or request that constitutes, or could reasonably be expected proposals being referred to lead to, herein as an Acquisition “Alternative Proposal”), (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding an Alternative Transaction, (iii) enter into any agreement regarding any Alternative Transaction or furnish any non-public information relating (iv) render a rights agreement inapplicable to an Alternative Proposal or the Acquired Companies transactions contemplated thereby. Target shall, and shall cause each of the Subsidiaries and representatives of Target and its Subsidiaries to, (A) immediately cease and cause to be terminated all existing discussions or afford access to the books or records or officers of the Acquired Companies to, negotiations with any Third Party, in each case, person conducted heretofore with respect to, or that could reasonably be expected to lead to, an Acquisition any Alternative Proposal, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) grant not terminate, waive, amend, release or modify any waiver, amendment or release provision of any Third Party under confidentiality or standstill agreement relating to any standstill Alternative Proposal to which it or confidentiality any of its Subsidiaries is a party, and shall enforce the provisions of any such agreement; provided that notwithstanding . Notwithstanding the foregoing, if at any time after the Company shall be permitted to grant a waiver date hereof but before approval of or terminate any “standstill” or similar agreement or obligation of any Third Party to this Agreement by Target’s shareholders, (1) Target receives an unsolicited written Alternative Proposal that the extent such agreement or obligation prohibits a confidential proposal being made to the Company Target Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined believes in good faithfaith to be bona fide, (2) such Alternative Proposal was not the result of a violation of this Section 6.9, (3) the Target Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Alternative Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (4) the Target Board determines in good faith (after consultation with outside financial and outside legal advisors, counsel) that the failure to take such action the actions referred to in clause (x) or (y) below would be inconsistent with reasonably likely to violate its fiduciary duties under Applicable Lawapplicable law, then Target may (Dand may authorize its Subsidiaries and representatives to) (x) furnish nonpublic information regarding Target and its Subsidiaries to the person making such Alternative Proposal (and its representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Target than, those contained in the Confidentiality Agreement (provided, that any nonpublic information provided to any person given such access shall have been previously provided to Buyer or shall be provided to Buyer before or concurrently with the time it is provided to such person), and (y) participate in discussions and negotiations with the person making such Alternative Proposal.
(b) Except as provided otherwise below, neither the Target Board nor any committee thereof may (i)(A) withdraw (or modify or qualify in any manner adverse to Buyer) or refuse to recommend approval of this Agreement to Target’s shareholders or (B) adopt, approve, endorserecommend, recommend endorse or enter intootherwise declare advisable the adoption of any Alternative Proposal (each such action set forth in this Section 6.9(b)(i) being referred to as an “Adverse Recommendation Change”), or publicly propose (ii) cause or permit Target or any of its Subsidiaries to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract agreement constituting or related to, or that is intended to or is reasonably likely to lead to, any Alternative Proposal (other than a confidentiality agreement permitted by Section 6.9(a)). Notwithstanding the foregoing, at any time before obtaining approval of the Merger and this Agreement by Target’s shareholders, the Target Board may, if the Target Board determines in good faith (after consultation with outside counsel) that the failure to do so would be reasonably likely to violate its fiduciary duties under applicable law, taking into account all adjustments to the terms of this Agreement that may be offered by Buyer under this Section 6.9(b), make an Adverse Recommendation Change; provided, that Target may not make any Adverse Recommendation Change in response to an Alternative Proposal unless (x) Target shall not have breached this Section 6.9 in any respect and (y):
(i) The Target Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Alternative Proposal is 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 all adjustments to the terms of this Agreement that may be offered by Buyer under this Section 6.9(b);
(ii) Target has given Buyer at least four business days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the person making such Superior Proposal; and
(iii) Before effecting such Adverse Recommendation Change, Target has negotiated, and has caused its representatives to negotiate, in good faith with Buyer during such notice period to the extent Buyer wishes to negotiate, to enable Buyer to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of such Superior Proposal, Target shall, in each case, be required to deliver to Buyer a new written notice, the notice period shall have recommenced and Target shall be required to comply with its obligations under this Section 6.9 with respect to such new written notice.
(c) In addition to the obligations of Target under Sections 6.9(a) and (b), Target shall notify Buyer promptly (but in no event later than 24 hours) after receipt of any Acquisition Alternative Proposal, or any material modification of or material amendment to any Alternative Proposal, or any request for nonpublic information relating to Target or any of its Subsidiaries or for access to the properties, books or records of Target or any Subsidiary by any person that informs the Target Board or any Subsidiary that it is considering making, or has made, an Alternative Proposal. Such notice to Buyer shall be made orally and in writing, and shall indicate the identity of the person making the Alternative Proposal other than or intending to make or considering making an Acceptable Confidentiality Agreement Alternative Proposal or requesting nonpublic information or access to the books and records of Target or any Subsidiary, and the material terms of any such Alternative Proposal or modification or amendment to an Alternative Proposal. Target shall keep Buyer fully informed, on a current basis, of any material changes in the status and any material changes or modifications in the terms of any such Alternative Proposal, indication or request. Target shall also promptly, and in any event within 24 hours, notify Buyer, orally and in writing, if it enters into discussions or negotiations concerning any Alternative Proposal in accordance with Section 6.02(c6.9(a).
(d) (an “Alternative Acquisition As used in this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 2 contracts
Sources: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Park Sterling Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company shall IFG will not, and shall (i) cause will not authorize or permit any of its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Affiliates or Representatives of each Acquired Company not to, directly or knowingly indirectly: (A) , solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating information) or take any other action to facilitate knowingly any Acquired Company) inquiries or the making of any inquiry, discussion, offer proposal which constitutes or request that constitutes, or could may reasonably be expected to lead to, to an Acquisition ProposalProposal (as defined herein) from any Person, (B) enter into, continue or otherwise participate engage in any discussion or negotiations relating thereto or accept any Acquisition Proposal; provided, however, that notwithstanding any other provision hereof, IFG may (i) at any time prior to the time IFG's stockholders shall have voted to approve this Agreement, engage in discussions or negotiations withwith a third party who (without any solicitation, initiation or encouragement, directly or knowingly indirectly, by or with IFG or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish any non-public such third party information relating concerning IFG and its business, properties and assets if (A) (x) the third party has first made an Acquisition Proposal and IFG's Board of Directors determines in good faith after consultation with its financial advisors that to do so has a reasonable prospect of leading to an Acquisition Proposal that is superior to the Acquired Companies to, Merger and for which financing for the Acquisition Proposal has a reasonable prospect to be obtained (as determined in good faith by IFG's Board of Directors after consultation with its financial advisor) (a "Superior Proposal") or afford access to the books or records or officers (y) IFG's Board of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company Directors shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined conclude in good faith, after consultation with its considering applicable provisions of state law, and after considering oral or written advice of outside financial and outside legal advisors, counsel that failure to take such action would be inconsistent with its fiduciary duties under Applicable Lawapplicable law and (B) prior to furnishing such information to or entering into discussions or negotiations with such Person, IFG (x) except to the extent inconsistent with the fiduciary obligation of IFG's Board of Directors provides prompt notice to AIMCO to the effect that it is planning to furnish information to or enter into discussions or negotiations with such Person and (y) receives from such Person an executed confidentiality agreement in reasonably customary form (but not containing any standstill provision), (Dii) approvecomply with the provisions of Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with regard to a tender or exchange offer if such provisions are applicable to IFG or otherwise make any disclosure required by applicable law, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any and/or (iii) accept an Acquisition Proposal other than an Acceptable Confidentiality from a third party, provided IFG concurrently terminates this Agreement in accordance with pursuant to Section 6.02(c9.1(e) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from and immediately pays the restrictions on “business combinations” contained Break-Up Fee set forth in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing9.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Apartment Investment & Management Co), Agreement and Plan of Merger (Insignia Financial Group Inc)
No Solicitation. Except (a) The Company shall immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as permitted defined herein). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any of its subsidiaries or any affiliate (other than Parent, Purchaser or Citigroup Holdings Group and its subsidiaries), director or investment banker, attorney or other advisor or representative of the Special Committee, the Company or any of its subsidiaries, shall be deemed to be a breach of this Section 6.02, during 5.2(a) by the period from Company. From the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.017.1, the Company and the Special Committee shall not, and nor shall (i) cause the Company permit any of its Subsidiaries and subsidiaries to, nor shall the respective Company authorize or permit any of the Company's officers, directors and officers employees and any affiliate (other than Parent or Purchaser), investment banker, financial advisor, attorney, accountant or other representative retained by the Special Committee, the Company or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not subsidiaries to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage facilitate (including by way of furnishing non-public information relating to any Acquired Companywhich has not been previously publicly disseminated) any inquiry, discussion, offer inquiries or request that the making of any proposal which constitutes, or could is reasonably be expected to lead to, an Acquisition Proposal, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Takeover Proposal; provided, or furnish any non-public information relating however, that if, prior to the Acquired Companies to, or afford access to the books or records or officers earlier of the Acquired Companies toEffective Time or the adoption of this Agreement by the requisite vote of the Company stockholders, any Third Partyand following the receipt of a Takeover Proposal which was not solicited or facilitated after the date of this Agreement in violation of this Section 5.2(a), the Special Committee determines in each casegood faith by a unanimous vote (a) after consultation with outside counsel, that a failure to do so is reasonably likely to constitute a breach by it of its fiduciary duties to its stockholders under applicable law and (b) after consultation with respect tothe Financial Advisor (or another nationally recognized investment banking firm), or that could such proposal is reasonably be expected to lead toto a Superior Proposal (as defined herein), an Acquisition Proposalthen the Company may, in response to such Superior Proposal and subject to compliance with Section 5.2(c), (Cx) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a customary confidentiality agreement, provided that (i) such confidentiality agreement must include a provision prohibiting such party from soliciting key employees of the Company or its subsidiaries, such provision lasting at least one year and (ii) the Company delivers to Parent all such nonpublic information delivered to the requesting party concurrently with its delivery to such requesting party, and (y) participate in discussions and negotiations with such party regarding such Takeover Proposal.
(b) Except as expressly permitted in this Section 5.2, neither the Board or of Directors of the Company nor the Special Committee if or any other committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the Company approval, determination of advisability, or recommendation by such Board (acting upon the recommendation of Directors or such committee of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable LawTransactions, (Dii) approve, endorse, recommend or enter intodetermine to be advisable, or recommend, or propose publicly propose to approve, endorsedetermine to be advisable, recommend or recommend, any Takeover Proposal or (iii) cause the Company to enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect similar agreement (each, an "Acquisition Agreement") related to any Acquisition Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the earlier of the Effective Time or the adoption of this Agreement by the requisite vote of the Company stockholders, the Special Committee determines in good faith by a unanimous vote, after consultation with outside counsel, that a failure to do so is reasonably likely to constitute a breach by it of its fiduciary duties to its stockholders under applicable law, each of the Board of Directors of the Company and the Special Committee may (subject to this and the following sentences and to compliance with Section 5.2(a)) withdraw or modify its approval, determination or recommendation of the Transactions, provided that it uses reasonable best efforts to give Parent two days prior written notice of its intention to do so.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.2, the Company shall promptly advise Parent orally and in writing of any request for information or of any Takeover Proposal, the material terms and conditions of such request or the Takeover Proposal other than an Acceptable Confidentiality Agreement and the identity of the person making such request or Takeover Proposal and shall keep Parent reasonably informed of the status and any material changes in details of any such request or Takeover Proposal.
(d) Nothing contained in this Section 5.2 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e- 2(a) promulgated under the Securities Exchange Act or from making any disclosure to the Company's stockholders required by applicable law; provided, however, neither the Company nor its Board of Directors nor any committee thereof shall, except as in accordance with Section 6.02(c5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination or recommendation with respect to the Transactions.
(e) (an “Alternative Acquisition For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 2 contracts
Sources: Merger Agreement (Delco Remy International Inc), Merger Agreement (Citigroup Inc)
No Solicitation. (a) Except as permitted by otherwise provided in this Section 6.026.5, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company GFI shall not, nor shall it authorize or permit any of the GFI Subsidiaries or any of its and shall (i) cause its Subsidiaries and the Subsidiaries' respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly (Ai) solicit, initiate, seek solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (including by way of furnishing ii) adopt, or publicly propose to adopt, or allow GFI or any GFI Subsidiary to execute or enter into, any binding or non-public information binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement, undertaking, or understanding in connection with or relating to any Acquired CompanyTakeover Proposal (other than confidentiality agreements permitted under Section 6.5(b)(i)) any inquiryor (iii) other than with CME, discussionMerger Sub 1, offer Merger Sub 2 or request that constitutes, their respective Representatives or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter intoother than informing third parties of the existence of this Section 6.5, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public Person any information or data in connection with or relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third PartyTakeover Proposal. GFI shall, and GFI shall cause the GFI Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement.
(b) Notwithstanding the foregoing, prior to receipt of the GFI Stockholder Approval, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal that was first received after the date hereof and did not otherwise result from a breach of this Section 6.5, and subject to compliance with Section 6.5(d) (Change in Recommendation):
(i) furnish information with respect to GFI and the GFI Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing provisions no less favorable in the aggregate to GFI than those contained in the Confidentiality Agreement then in effect; provided that such confidentiality agreement (A) shall be provided to CME promptly after its execution, (B) shall not contain any provisions that would prevent GFI from complying with its obligation to provide the required disclosure to CME pursuant to this Section 6.5 (No Solicitation) and (C) need not contain a standstill or similar provision that prohibits such Person from making a Takeover Proposal; provided, further, that a copy of all such information provided to such Person has previously been provided to CME or its Representatives or is provided to CME substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal.
(c) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, an Acquisition any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to CME of (Ci) grant such Takeover Proposal or inquiry, (ii) the identity of the Person making any waiver, amendment such Takeover Proposal or release inquiry and (iii) the material terms and conditions of any Third Party under any standstill such Takeover Proposal or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant inquiry (including a waiver of or terminate any “standstill” or similar agreement or obligation copy of any Third Party such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to the extent above and continuing until such agreement or obligation prohibits a confidential proposal being made to the Company Board Takeover Proposal is withdrawn or the Special Committee if the Company Board of Directors of GFI (acting upon the recommendation of the Special Committee) has determined provided written notice to CME that it is prepared to effect a Change in Recommendation pursuant to Section 6.5(d) (Change in Recommendation), (A) once, and not more than once, each day at mutually reasonably agreeable times, GFI (or its outside legal counsel) shall, in person or by telephone, provide CME (or its outside legal counsel) a summary of the status of such Takeover Proposal and the material resolved or unresolved issues (including the stated positions of the parties to such negotiations on such issues) related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery thereof, provide CME (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(d) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to receipt of the GFI Stockholder Approval, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith, faith (after consultation with its outside legal counsel and its independent financial and outside legal advisors, advisor) that the failure to take such action do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under Applicable applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (Di) approvethe Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to CME that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, endorsewhich notice shall, recommend in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by CME, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) CME does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or enter intoobviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by CME, negotiate in good faith with CME and its Representatives (so long as CME and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by CME intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or publicly propose to approveobviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to CME a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(e) Nothing contained in this Section 6.5 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, endorsehowever, recommend or enter intothat neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with except as expressly permitted by Section 6.02(c6.5(d) (an “Alternative Acquisition Change in Recommendation), effect a Change in Recommendation.
(f) For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 2 contracts
Sources: Merger Agreement (Jersey Partners Inc.), Merger Agreement (Jersey Partners Inc.)
No Solicitation. Except as permitted by this Section 6.02, during (a) DBC and the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company DBC Subsidiaries shall not, and shall (i) cause its Subsidiaries and the respective not authorize or permit any of their officers, directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts or employees or any investment banker, financial advisor or attorney to cause the other Representatives of each Acquired Company not to, directly initiate or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating information), or take any other action to facilitate, any Acquired Company) inquiries or the making of any inquiry, discussion, offer or request proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition Proposal, provided, however, that if, at any time the Board of Directors of DBC determines in good faith, based on the written advice of outside counsel, that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties under applicable law, DBC, in response to a written Acquisition Proposal that (Bi) enter intowas unsolicited or that did not otherwise result from a breach of this Section, continue or otherwise participate in any discussions or negotiations withand (ii) is reasonably likely to lead to a Superior Proposal, or may (x) furnish any non-public information relating with respect to DBC or the DBC Subsidiaries to the Acquired Companies to, or afford access person who made such Acquisition Proposal pursuant to the books or records or officers of the Acquired Companies to, any Third Party, a customary confidentiality agreement and (y) participate in each case, with respect to, or that could reasonably be expected to lead to, an negotiations regarding such Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding . Without limiting the foregoing, it is understood that any violation of the Company restrictions set forth in the preceding sentence by any director or officer of DBC or any of the DBC Subsidiaries or any investment banker, financial advisor, attorney, accountant, or other representative of DBC or any of the DBC Subsidiaries, whether or not acting on behalf of DBC or any of its subsidiaries, shall be permitted deemed to grant be a waiver breach of this Section by DBC.
(b) DBC shall call a meeting of its shareholders to be held as promptly as practicable for the purpose of voting upon this Agreement and shall take, in good faith, all actions which are necessary or terminate appropriate on its part in order to secure the approval of this Agreement by its shareholders at the meeting, including recommending the approval of this Agreement by DBC's shareholders; provided, however, that DBC's Board of Directors shall not be required to take any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) action otherwise required by this sentence that it has determined in good faith, after consultation with its based on the advice of outside financial and outside legal advisorscounsel, that failure to take such action would be inconsistent with reasonably likely to constitute a breach of its fiduciary duties under Applicable Lawapplicable law.
(c) The Board of Directors of DBC shall not (1) fail to recommend this Agreement, withdraw or modify, or propose to withdraw or modify, in a manner adverse to FFC, its approval or recommendation of this Agreement or the Merger unless there is an Acquisition Proposal outstanding, (D2) approve, endorse, recommend approve or enter intorecommend, or publicly propose to approveapprove or recommend, endorse, recommend an Acquisition Proposal or (3) cause DBC to enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract agreement with respect to an Acquisition Proposal unless (x) the Board of Directors of DBC shall have determined in good faith, based on the written advice of outside counsel, that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties under applicable law and (y) the applicable Acquisition Proposal is a Superior Proposal.
(d) Nothing contained in this Section shall prohibit DBC from at any time taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended, provided, however, that neither DBC nor its Board of Directors shall, except as permitted by paragraph (b) of this section, propose to approve or recommend, an Acquisition Proposal.
(e) DBC shall promptly (but in any event within one day) advise FFC orally and in writing of any Acquisition Proposal other than or any inquiry regarding the making of an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take Proposal including any action to exempt any Third Party from request for information, the restrictions on “business combinations” contained in Section 203 material terms and conditions of such request, Acquisition Proposal or inquiry and the identity of the DGCL person making such request, Acquisition Proposal or inquiry. DBC will, to the extent reasonably practicable, keep FFC fully informed of the status and details (including amendments or proposed amendments) of any other applicable Takeover Statute such request, Acquisition Proposal or otherwise cause such restrictions not to apply or inquiry.
(Fi) resolve, agree, authorize or commit to do In the event the Board of Directors of DBC takes any of the actions set forth in clauses (1), (2) and/or (3) of Section 5.7(c) in compliance with the standards in (x) and (y) therein, such action shall allow termination of this Agreement by FFC under Section 8.1(b)(iii) herein which shall be treated in the same manner as termination under Section 8.1
(a) herein and shall allow exercise of the Warrant. In the event the Board of Directors of DBC takes any of the actions set forth in clauses (1), (2) and/or (3) of Section 5.7(c) without compliance with the standards in (x) and (y) therein, such action shall constitute a breach allowing termination of this Agreement by FFC under Section 8.1(c)(iii) herein which shall be treated in the same manner as termination by FFC under Section 8.1(b)(i) herein and shall allow exercise of the Warrant.
(ii) This Agreement may be terminated by DBC prior to the shareholders meeting of DBC if (A) the Board of Directors of DBC shall have determined in good faith based on the advice of outside counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to DBC's shareholders under applicable law, (B) it is not in breach of its obligations under this Section 5.7 in any material respect and has complied with, and continues to comply with, all requirements and procedures of this Section 5.7 in all material respects and has authorized, subject to complying with the terms of this Agreement, DBC to enter into a binding written agreement for a transaction that constitutes a Superior Proposal and DBC notifies FFC in writing that it intends to enter into such agreement, attaching the most current version of such agreement to such notice; (C) FFC does not make, within five (5) business days after receipt of DBC's written notice of its intention to enter into a binding agreement for a Superior Proposal, any offer that the Board of Directors reasonably and in good faith determines, after consultation with its financial and legal advisors, is at least as favorable to the shareholders of DBC as the Superior Proposal and during such period DBC reasonably considers and discusses in good faith all proposals submitted by FFC and, without limiting the foregoing, meets with, and causes its financial and legal advisors to meet with, FFC and its advisors from time to time as required by FFC to consider and discuss in good faith FFC's proposals, and (D) prior to DBC's termination pursuant to this Section 5.7(f)(ii), DBC confirms in writing that such termination allows exercise of the Warrant. DBC agrees (x) that it will not enter into a binding agreement referred to in clause (B) above until at least the five (5) business days after FFC has received the notice to FFC required by clause (B) and (y) to notify FFC promptly if its intention to enter into a binding agreement referred to in its notice to FFC shall change at any time after giving such notice.
(g) For the purpose of this Section 5.7:
Appears in 2 contracts
Sources: Merger Agreement (Drovers Bancshares Corp), Merger Agreement (Fulton Financial Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and nor shall (i) cause it authorize or permit any Company Subsidiary or any of its Subsidiaries and the or their respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly (Ai) initiate, solicit, initiate, seek knowingly facilitate or knowingly encourage (including by way any inquiry or the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request proposal that constitutes, constitutes or could reasonably be expected to lead to, an Acquisition Proposalto a Takeover Proposal (as defined in Section 6.4(f)), (Bii) enter intointo any letter of intent, continue memorandum of understanding, merger agreement or otherwise participate in any discussions other agreement, arrangement or negotiations with, or furnish any non-public information understanding relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition any Takeover Proposal, or (Ciii) grant continue or otherwise participate in any waiverdiscussions or negotiations regarding, amendment furnish to any Person any information or release of data with respect to, or otherwise cooperate with or take any Third Party under other action to knowingly facilitate any standstill proposal that (A) constitutes, or confidentiality agreement; provided that notwithstanding could reasonably be expected to lead to, any Takeover Proposal or (B) requires Parent or the Company to abandon, terminate or fail to consummate the Offer, the Merger or any other Transactions contemplated by this Agreement. Notwithstanding the foregoing, prior to, but not after, the Acceptance Time, the Company shall be permitted may, in response to grant a waiver bona fide written Takeover Proposal that was unsolicited and did not otherwise result from a breach of or terminate any “standstill” or similar agreement or obligation of any Third Party this Section 6.4(a), and subject to the extent such agreement or obligation prohibits a confidential proposal being made compliance with Section 6.4(c):
(x) furnish information with respect to the Company Board or the Special Committee if and the Company Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing terms and conditions no less restrictive than those contained in the Confidentiality Agreement, provided that such confidentiality agreement shall not contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to Section 6.4(b), and provided further, that all such information provided to such Person has previously been provided to Parent or is provided to Parent prior to or concurrently with the time it is provided to such Person; and
(y) participate in discussions or negotiations with such Person and its Representatives regarding such Takeover Proposal; provided, in each case, that the Board (acting upon the recommendation of Directors of the Special Committee) has determined Company determines in good faith, by resolution duly adopted after consultation with its outside legal counsel and a financial and outside legal advisorsadvisor of nationally recognized reputation, that (i) the failure to take furnish such action would be inconsistent with information or participate in such discussions or negotiations is reasonably likely to breach its fiduciary duties to the stockholders of the Company under Applicable applicable Law, and (Dii) approvesuch Takeover Proposal would reasonably be expected to lead to a Superior Proposal (as defined in Section 6.4(f)). The Company shall (A) immediately cease and cause to be terminated any existing activities, endorse, recommend discussions or enter into, negotiations with any Persons or publicly propose their Representatives conducted prior to approve, endorse, recommend or enter into, any letter the date of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract this Agreement with respect to any Acquisition Takeover Proposal other than an Acceptable Confidentiality Agreement and will request the prompt return of any confidential information previously furnished to such Persons in accordance with connection therewith, and (B) use its reasonable best efforts promptly to inform its Representatives of the obligations undertaken in this Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take 6.4. Without limiting the foregoing, any action to exempt any Third Party from violation of the restrictions on “business combinations” contained set forth in this Section 203 6.4 by any Representative of the DGCL Company or any other applicable Takeover Statute of its Subsidiaries, whether or otherwise cause not such restrictions not person is purporting to apply act on behalf of the Company or (F) resolve, agree, authorize or commit to do any of its Subsidiaries, shall be deemed to be a breach of this Section 6.4 by the foregoingCompany.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement hereof until the earlier of the Effective Time Closing or the earlier termination of this Agreement in accordance with Section 8.01its terms, the Company shall not, directly or indirectly through any of its Subsidiaries or affiliates or any of its or their respective Representatives, and shall (i) cause not permit any of its Subsidiaries and the or affiliates or any of their respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly (1) initiate, solicit or indirectlyknowingly facilitate or knowingly encourage an Acquisition Proposal or (2) engage with any third party in any discussions or negotiations concerning, or furnish any confidential information to any third party in connection with, an Acquisition Proposal, or any inquiry or proposal that would constitute an Acquisition Proposal if it were a bona fide written proposal or offer (except to notify such third party of the existence of the provisions of this Section 6.08), provided, however, for purposes of this Section 6.08 the term “affiliate” shall not include any Person that becomes an affiliate of the Company after the date of this Agreement without any action on the part of the Company. Notwithstanding anything to the contrary in the previous sentence, prior to the Acceptance Date, the Company may furnish information to, or enter into discussions or negotiations with, any Person that has made an Acquisition Proposal if, and only to the extent that: (A) solicit, initiate, seek the receipt of such Acquisition Proposal did not result from a breach of (1) clause (1) of the first sentence of this Section 6.08(a) or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company2) any inquiryother provision of this Section 6.08 in any material respect; (B) such Acquisition Proposal constitutes a Superior Proposal or the Company Board, discussionafter consulting with the Company’s outside legal and financial advisors, offer determines in good faith that (1) such Acquisition Proposal, after furnishing such information and entering into such discussions or request that constitutesnegotiations, or could reasonably be expected to result in a Superior Proposal and (2) the failure to take such action would be inconsistent with its fiduciary obligations to the Company’s shareholders under applicable Law; and (C) prior to furnishing such information, the Company receives from such Person an executed confidentiality agreement on customary terms that are no less favorable to the Company than the terms of the Confidentiality Agreement; provided, however, that the Company may, after making the determination described in clause (B) above, enter into discussions or negotiations solely with respect to entering into such confidentiality agreement and will not be deemed to be in breach of this Section 6.08 as a result thereof.
(b) From the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, the Company shall promptly, but in any event within twenty-four (24) hours, notify Parent following receipt by the Company of any Acquisition Proposal, the material terms thereof and material conditions thereto and the identity of the Person making such Acquisition Proposal, as well as any material modification of or amendment thereto, or of any bona fide communication by any Person that affirmatively states that it relates to, or could lead to, or that any party is contemplating, a potential Acquisition Proposal, including the identity of the Person making or on whose behalf such communication was made and the other material facts of such communication, and the Company will keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to such Acquisition Proposal or other communication.
(c) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly request that all confidential information previously provided to any such Persons be returned or destroyed in accordance with the confidentiality agreements in effect with such Persons that remain in effect as of the date of this Agreement and, subject to the second sentence of Section 6.08(a) with respect to any Acquisition Proposal received after the date hereof and compliance with the procedures provided therein, shall deny access to any data room (virtual or actual) containing any confidential information to all such Persons.
(d) Nothing contained in this Section 6.08 prohibits or will be construed as prohibiting the Company or the Company Board from (1) taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (2) making any disclosure to the Company’s shareholders if, in the good faith judgment of the Company Board after consultation with outside counsel, failure to make such disclosure would be inconsistent with its fiduciary obligations under applicable Law.
(e) Except as otherwise permitted hereby, from the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, neither the Company Board nor any committee thereof shall (1) approve or accept any Acquisition Proposal, (2) cause or permit the Company to agree to or enter into any letter of intent, agreement in principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, license agreement, stock purchase agreement or similar agreement with respect to any Acquisition Proposal or (3) fail to make, withdraw, modify or qualify in a manner adverse to Parent or Purchaser, or agree or publicly propose to withdraw, modify or qualify in a manner adverse to Parent or Purchaser, the Company Board Recommendation, or recommend, or agree or publicly propose to recommend, an Acquisition Proposal, or announce that an Acquisition Proposal constitutes a Superior Proposal (Beach such action described in clause (3) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating being an “Adverse Recommendation Change”).
(f) Notwithstanding anything to the Acquired Companies tocontrary in this Section 6.08, or afford access at any time prior to the books Acceptance Date, the Company Board may, following receipt of an Acquisition Proposal that constitutes a Superior Proposal, make an Adverse Recommendation Change or records or officers cause the Company to terminate this Agreement pursuant to Section 9.01(i) so as to concurrently with such termination enter into a definitive agreement providing for the transactions contemplated by such Superior Proposal, but only if (1) the Company promptly notifies Parent, in writing, at least two (2) Business Days before taking such action, of its intention to do so, attaching the most current version of the Acquired Companies toproposed agreement under which such Acquisition Proposal is proposed to be consummated or, any Third Partywhere no such copy is available, in each case, with respect to, or that could a reasonably be expected to lead to, an detailed description of such Acquisition Proposal, and the identity of the third party making the Acquisition Proposal, and (C2) grant any waiverParent does not make, amendment within three (3) Business Days (or release two (2) Business Days in the case of any Third Party under any standstill or confidentiality agreement; provided subsequent offer) after its receipt of that notwithstanding the foregoingwritten notification, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to an offer that the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines, in good faith, after consultation with its outside financial and outside legal advisors, is more favorable to the Company’s shareholders than such Acquisition Proposal (it being understood and agreed that failure any amendment to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement the financial terms or other Contract with respect to any material terms of such Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party shall require a new written notification from the restrictions on “business combinations” contained Company, provided that a two (2) Business Day period shall apply under clause (2) of this Section 6.08(f)). During any three (3) Business Day (or two (2) Business Day, in the case of subsequent offers) period prior to its effecting an Adverse Recommendation Change pursuant to this Section 203 6.08(f) or termination pursuant to Section 9.01(i), the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent and its Representatives regarding any revisions to the terms of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingTransactions proposed by Parent.
Appears in 2 contracts
Sources: Merger Agreement (Intelligroup Inc), Merger Agreement (Intelligroup Inc)
No Solicitation. Except (a) None of Maxtor, Maxtor’s Subsidiaries or any of their respective officers, directors, employees, agents, representatives and affiliates (collectively, “Representatives”) shall, directly or indirectly (i) initiate, solicit, or knowingly and intentionally encourage or facilitate, any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage in any negotiations concerning, or provide any nonpublic information to, or have any discussions with, any person relating to, any Acquisition Proposal, (iii) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Seagate or its affiliates or (iv) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, or execute or enter into any letter of intent, agreement in principle, merger agreement, share purchase agreement, asset purchase or share exchange agreement, option agreement or other similar agreement relating to an Acquisition Proposal or publicly propose or agree to do any of the foregoing; provided that, in the event Maxtor receives an unsolicited bona fide Acquisition Proposal and Maxtor’s board of directors concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to constitute a Superior Proposal, prior to the closing of the polls as to the approval of this Agreement at the Maxtor Stockholders Meeting, Maxtor may, and may permit its Subsidiaries and its and their Representatives to, take any action described in clause (ii) above to the extent that the board of directors of Maxtor concludes in good faith (after consultation with its outside counsel) that failure to take such actions would reasonably be expected to result in a violation of its fiduciary duties under applicable law; provided further that (x) prior to providing any nonpublic information permitted by to be provided pursuant to the foregoing proviso, Maxtor shall have entered into a confidentiality agreement with such third party on terms no less favorable to Maxtor than the Confidentiality Agreement (including, without limitation, “standstill” provisions no less favorable to Maxtor than those contained in the Confidentiality Agreement), and (y) Maxtor shall also furnish to Seagate a copy of any confidential data or information that it is furnishing to any third party pursuant to this Section 6.027.8(a) to the extent not previously furnished to Seagate. Maxtor will immediately cease and cause to be terminated any activities, during the period from discussions or negotiations it or its Subsidiaries or any of their respective Representatives may have conducted before the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the any persons other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract than Seagate with respect to any Acquisition Proposal and will (and will cause its Subsidiaries and their Representatives to) enforce any confidentiality or similar agreement relating to an Acquisition Proposal, including by requiring the other than an Acceptable Confidentiality Agreement parties thereto to promptly return or destroy any confidential information previously furnished by Maxtor or such Subsidiaries or Representatives thereunder and by using its best efforts to obtain injunctions or other equitable remedies to prevent or restrain any breaches of such agreements and to enforce specifically the terms thereof in accordance a court of competent jurisdiction. Maxtor will promptly (within one Business Day) advise Seagate following receipt of any Acquisition Proposal, or of any request for nonpublic information or access to the books and records of Maxtor in connection with Section 6.02(c) a possible Acquisition Proposal, describing the substance thereof (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from including the restrictions on “business combinations” contained in Section 203 identity of the DGCL person making such Acquisition Proposal or any other applicable Takeover Statute request for information or otherwise cause such restrictions not to apply or (F) resolveaccess), agree, authorize or commit to do any and will keep Seagate apprised of the status and the material terms and conditions of the Acquisition Proposal and any material changes thereto on a current basis (and in any event no later than 48 hours after the occurrence of any such material changes). Without limiting the foregoing, Maxtor shall promptly, and in any event within 24 hours, notify Seagate orally and in writing if it determines to begin providing information or to engage in negotiations concerning an Acquisition Proposal pursuant to this Section 7.8.
Appears in 2 contracts
Sources: Merger Agreement (Seagate Technology), Merger Agreement (Maxtor Corp)
No Solicitation. (a) Except as permitted by otherwise specified in this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.015.3, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its commercially reasonable best efforts to cause the other ensure that its and its Subsidiaries’ Representatives of each Acquired Company not toshall not, directly or indirectly: (A) solicit, initiate, seek solicit or knowingly encourage (including by way of furnishing non-public information information) or take any other action to facilitate any inquiries or the making of any proposal relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition ProposalAlternative Transaction, or enter into discussions (Cexcept as to the existence of this Section 5.3) grant or negotiate with any waiverperson or entity to obtain, amendment or release in connection with, an Alternative Transaction, or agree to, or recommend, any Alternative Transaction.
(b) The Company shall promptly (but in any event within 48 hours) notify Buyer of all material terms of any Third Party under such proposals received by the Company or by any standstill or confidentiality agreement; provided that notwithstanding the foregoingof its Representatives relating to any Alternative Transaction, and if such proposal is in writing, the Company shall promptly deliver or cause to be permitted delivered to grant Buyer a waiver copy of or terminate any “standstill” or similar agreement or obligation such proposal.
(c) The Company shall notify its and its Subsidiaries’ Representatives of any the restrictions described in this Section 5.3.
(d) Nothing contained in this Agreement shall prohibit the board of directors of the Company, the Company, and each of its Representatives from:
(i) referring a Third Party to this Section 5.3 or making a copy of this Section 5.3 available to any Third Party;
(ii) prior to the extent adoption of this Agreement by the stockholders of the Company, furnishing information to, entering into a confidentiality agreement with, or entering into discussions or negotiations with, any Persons in connection with an unsolicited bona fide proposal by such Person relating to an Alternative Transaction if, (A) such proposal constitutes a Superior Proposal, or the board of directors of the Company, after consultation with the Company’s financial advisors, determines in good faith that such proposal could reasonably be expected to lead to a Superior Proposal, (B) the board of directors of the Company, after consultation with the Company’s legal counsel, believes in good faith that such action is necessary for the Company’s board of directors to comply with its fiduciary duties to Company stockholders, and (C) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company (1) provides written notice to Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, and (2) receives from such Person an executed confidentiality agreement or obligation prohibits containing terms and conditions substantially similar to the Confidentiality Agreement; or
(iii) prior to the adoption of this Agreement by the stockholders of the Company, entering into an agreement with respect to a confidential proposal being made Superior Proposal that did not result from a breach of this Section 5.3; provided, in the case of this clause (iii), that the Company shall have provided Buyer with written notice of such Superior Proposal and Buyer shall not have delivered to the Company Board or a Superior Offer within four Business Days of such notice; provided, further, that in the Special Committee if case of this clause (iii), the Company Board shall not terminate this Agreement unless concurrently with such termination the Company pays to Buyer the Fee (acting upon as defined in Section 8.3(b) of this Agreement).
(e) Nothing contained in this Agreement shall (i) prohibit the Company’s board of directors, the Company and its Representatives from complying with Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or making such disclosures to the Company’s stockholders as, in the good faith determination of the Company’s board of directors, is required by Law, or (ii) prohibit or restrict the board of directors of the Company from amending, modifying or withdrawing its recommendation of this Agreement and the Special Committee) has determined Merger, to the extent that the Company’s board of directors determines in good faith, after consultation discussion with its outside financial and outside legal advisorscounsel, that failure it is required to take such action would be inconsistent do so to comply with its fiduciary duties under Applicable Lawto the Company’s stockholders.
(f) The Company shall immediately cease any existing activities, (D) approve, endorse, recommend discussions or enter into, or publicly propose to approve, endorse, recommend or enter into, negotiations with any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract persons conducted heretofore with respect to any Acquisition Proposal other than an Acceptable Confidentiality Alternative Transaction. The Company also shall, if it has not already done so, promptly request, to the extent it has a contractual right to do so, that each person, if any, that has executed a confidentiality agreement within the 12 months prior to the date of this Agreement in accordance connection with Section 6.02(cits consideration of any Alternative Transaction to return or destroy all confidential information or data heretofore furnished to any person by or on behalf of it or any of its Subsidiaries.
(g) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” Nothing contained in Section 203 this Agreement shall prohibit the Company from filing with the SEC a current report on Form 8-K to report the execution of the DGCL or this Agreement and file a copy of this Agreement and any other applicable Takeover Statute or otherwise cause ancillary agreement as exhibits to such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoinga report.
Appears in 2 contracts
Sources: Merger Agreement (Marketwatch Inc), Merger Agreement (Dow Jones & Co Inc)
No Solicitation. Except as permitted by Notwithstanding anything to the contrary contained in this Section 6.02Agreement, during the period from (the “Go-Shop Period”) beginning on the date of this Agreement and continuing until 12:01 a.m. on the earlier of 65th day after the Effective Time or the termination date of this Agreement in accordance with Section 8.01or, if earlier, the Company 60th day after the later of (x) the date of this Agreement or (y) the date on which an independent investment bank selected by the MCC Special Committee is retained by the MCC Special Committee to solicit strategic alternatives for MCC (the “No-Shop Period Start Date”), Section 7.3(b), Section 7.4(b), Sections 7.10(a) through (d) and Section 7.10(f) shall notnot apply or have any force or effect with regard to MCC, provided that beginning on the No-Shop Period Start Date, Section 7.3(b), Section 7.4(b), Sections 7.10(a) through (d) and Section 7.10(f) shall apply and be in full force and effect with regard to MCC (i) cause its Subsidiaries and and, for the respective directors and officers avoidance of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause doubt, SIC). Without limiting the other Representatives of each Acquired Company not toforegoing, directly or indirectlyduring the Go-Shop Period: (A) MCC and its representatives shall have the right to directly or indirectly (i) solicit, initiate, seek propose, cause or knowingly encourage induce the making, submission or announcement of, or encourage, facilitate or assist, whether publicly or otherwise, any Competing Proposal (including by way or any inquiry, proposal or offer that could lead to a Competing Proposal), (ii) subject to the entry into, and in accordance with, an Acceptable Confidentiality Agreement, the MCC Special Committee, in its discretion, may furnish to any Person (and its representatives and financing sources subject to the terms and obligations of furnishing such Acceptable Confidentiality Agreement applicable to such Person) any non-public information relating to MCC or afford to any Acquired Companysuch Person (and such representatives and financing sources) access to the business, properties, assets, books, records and other nonpublic information, and to any personnel, of MCC (provided that MCC will provide to SIC any information relating to MCC that was not previously provided or made available to SIC prior to or concurrently with the time it is furnished to such Person provided, MCC may omit any information to the extent that it would reveal the identity of the Person making, or any terms or conditions of, the Competing Proposal or inquiry that could reasonably be expected to lead to a Competing Proposal being discussed with such Person), in any such case with the intent to induce the making, submission and announcement of, and to encourage, facilitate and assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, a Competing Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to a Competing Proposal, and (iii) engage in, enter into, continue, maintain, or otherwise participate in, any discussions or negotiations with any Persons (and their respective representatives, including potential financing sources) with respect to any Competing Proposal (or inquiries, proposals or offers or other efforts that could lead to a Competing Proposal) and cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, discussions or negotiations or any effort or attempt to make any Competing Proposals; and (B) the MCC Board shall have the right to make any MCC Adverse Recommendation Change.
(a) Except with respect to any Excluded Party, subject to Section 7.10(d), each of MCC and SIC shall, and shall use commercially reasonable efforts to cause its representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Third Party relating to any Competing Proposal or any inquiry, discussion, offer or request that constitutescould reasonably be expected to lead to a Competing Proposal.
(b) No later than two (2) Business Days after the No-Shop Period Start Date, MCC will notify SIC in writing of the identity of each Excluded Party as of such time. Until the earlier of the Effective Time and termination of this Agreement, each of MCC and SIC shall, as promptly as reasonably practicable, and in any event within two (2) Business Days of receipt by it or any of its representatives, other than from any Excluded Party in the case of MCC, of any Competing Proposal or any inquiry that could reasonably be expected to lead to a Competing Proposal, deliver to the other party a written notice setting forth: (A) the identity of the Third Party making such Competing Proposal or inquiry (to the extent not prohibited by any applicable confidentiality agreement existing prior to the date of this Agreement) and (B) the material terms and conditions of any such Competing Proposal. MCC and SIC shall keep the other party reasonably informed of any material amendment or modification of any such Competing Proposal on a prompt basis, and in any event within two (2) Business Days thereafter. For the avoidance of doubt, MCC shall not be required to disclose to SIC any terms or conditions of any Competing Proposal made by an Excluded Party.
(c) Except as otherwise provided in this Agreement (including Section 7.10(d)) or with respect to any Third Party who at the time is an Excluded Party (except with respect to clause (iii) of this Section 7.10(c)), until the earlier of Effective Time and termination of this Agreement in accordance with its terms, each of MCC and SIC shall not, and shall not permit its Subsidiaries to, and shall use commercially reasonable efforts to cause its representatives not to, directly or indirectly, (i) initiate, solicit, induce or knowingly encourage or facilitate any inquiry with respect to the making of any proposal or offer with respect to a Competing Proposal, (ii) engage in negotiations or discussions with, or furnish any material nonpublic information to, any Third Party relating to a Competing Proposal or any inquiry or proposal that could reasonably be expected to lead to a Competing Proposal or (iii) enter into any agreement, arrangement or understanding with, any Third Party relating to a Competing Proposal or any inquiry or proposal that could reasonably be expected to lead to a Competing Proposal; provided however, that notwithstanding the foregoing, (A) each of MCC and SIC may inform Persons of the provisions contained in this Section 7.10, (B) each of MCC and SIC shall be permitted to grant a waiver of, or terminate, any “standstill” or similar obligation of any Third Party with respect to MCC or SIC, as applicable, in order to allow such Third Party to submit a Competing Proposal or to otherwise allow a Third Party’s participation in MCC’s or SIC’s, as applicable, exploration of strategic alternatives and (C) MCC may continue to take any of the actions described in clauses (i) and (ii) of this Section 7.10(c) above with respect to any Excluded Party from and after the No-Shop Period Start Date for so long as such Excluded Party remains an Excluded Party, or, if earlier, the earliest of the date on which (x) the Excluded Party has terminated or finally withdrawn the Competing Proposal made prior to the No-Shop Period Start Date (provided that, for the avoidance of doubt, any amended, supplemented or modified Competing Proposal submitted by such Excluded Party shall not be deemed to constitute, in and of itself, a termination or withdrawal of such previously submitted Competing Proposal), (y) the Person submitting the relevant Competing Proposal ceases to be an Excluded Party because the MCC Special Committee (after consultation with outside legal counsel and its financial advisors) determines that such Competing Proposal does not constitute or could not reasonably be expected to lead to a Superior Proposal, and (z) the MCC Stockholder Approval is obtained. For the avoidance of doubt, after 11:59 p.m. (Eastern Time) on the 14th day following the No-Shop Period Start Date, any Third Party which previously had been an Excluded Party will no longer be considered an Excluded Party and all further interactions between MCC and any such Third Party shall be subject to terms and conditions of this Agreement as if it is not an Excluded Party (including, without limitation, Section 7.10 hereof) and the Termination Fee under the first sentence of Section 9.4(a) shall be payable in connection with a termination of this Agreement pursuant to Section 9.1(f) or Section 9.1(g) and the second sentence of Section 9.4(a) shall not be applicable.
(d) Notwithstanding anything to the contrary contained in this Agreement but subject to the rights of MCC with respect to Excluded Parties pursuant to Sections 7.10(a) and 7.10(c), in the event that MCC (or its representatives on MCC’s behalf) or SIC (or its representatives on SIC’s behalf) receives a Competing Proposal from any Third Party, (i) during the Go-Shop Period, SIC and the SIC Board (or the SIC Special Committee) and its representatives may engage in negotiations or substantive discussions with, or furnish any information and other access to, any Third Party making such Competing Proposal and its representatives and Affiliates (without the SIC Board being required to make the determination in clause (iii) of this Section 7.10(d)), (ii) after the No-Shop Period Start Date, but prior to the date that MCC Stockholder Approval is obtained (in the case of MCC), or the Required SIC Stockholder Approval is obtained (in the case of SIC), MCC and its representatives or SIC and its representatives, as applicable, may contact such Third Party to clarify any ambiguous terms and conditions thereof (without the MCC Board or SIC Board, as applicable, being required to make the determination in clause (iii) of this Section 7.10(d)) and (iii) after the No-Shop Period Start Date, but prior to the date that MCC Stockholder Approval is obtained (in the case of MCC), or the Required SIC Stockholder Approval is obtained (in the case of SIC), MCC and the MCC Board and its representatives or SIC and the SIC Board and its representatives, as applicable, may engage in negotiations or substantive discussions with, or furnish any information and other access to, any Third Party making such Competing Proposal and its representatives and Affiliates if the MCC Special Committee or SIC Special Committee, as applicable, determines in good faith (after consultation with its outside financial advisors and legal counsel) that (A) such Competing Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to, an Acquisition Proposal, to a Superior Proposal and (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating failure to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that consider such Competing Proposal could reasonably be expected to lead tobe inconsistent with the fiduciary duties of the directors of MCC or SIC, an Acquisition Proposalas applicable, under Applicable Law; provided, in the case of clauses (i) through (iii) above, that (x) such Competing Proposal did not result from any material breach of any of the provisions set forth in this Section 7.10, (Cy) grant prior to furnishing any waivermaterial non-public information concerning MCC or SIC, amendment as applicable, MCC or release of any SIC, as applicable, receives from such Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingParty, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such Third Party is not already subject to a confidentiality agreement with MCC or obligation prohibits SIC, as applicable, a confidential proposal confidentiality agreement containing confidentiality terms that are not less favorable in the aggregate to MCC or SIC, as the case may be, than those contained in the Confidentiality Agreement (unless MCC or SIC, as applicable, offers to amend the Confidentiality Agreement to reflect such more favorable terms) (it being made understood and agreed that such confidentiality agreement need not restrict the making of Competing Proposals (and related communications) to MCC or the MCC Board or to SIC or the SIC Board, as the case may be) (an “Acceptable Confidentiality Agreement”) and (z) MCC or SIC, as the case may be, shall (subject to the Company Board terms of any confidentiality agreement existing prior to the date hereof) promptly provide or make available to the Special Committee if other party any material written non-public information concerning it that it provides to any Third Party given such access that was not previously made available to the Company Board other party or its representatives.
(acting upon the recommendation of the Special Committeee) has determined Except as otherwise provided in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Lawthis Agreement, (Di) approvethe MCC Board shall not effect an MCC Adverse Recommendation Change and the SIC Board shall not effect an SIC Adverse Recommendation Change (each, endorsean “Adverse Recommendation Change”), recommend (ii) MCC Board shall not approve or enter intorecommend, or publicly propose allow MCC to approve, endorse, recommend execute or enter into, any letter of intent, memorandum of understanding, understanding or definitive merger or similar agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Competing Proposal (other than an Acceptable Confidentiality Agreement), and (iii) the SIC Board shall not approve or recommend, or allow SIC to execute or enter into, any letter of intent, memorandum of understanding or definitive merger or similar agreement with respect to any Competing Proposal (other than an Acceptable Confidentiality Agreement); provided however, that notwithstanding anything in this Agreement to the contrary, if at any time prior to the receipt of MCC Stockholder Approval (in the case of MCC) or the Required SIC Stockholder Approval (in the case of SIC), MCC or SIC, as the case may be, has received a Competing Proposal that the MCC Special Committee or the SIC Special Committee, as applicable, has determined in good faith (after consultation with its outside financial advisor and legal counsel) constitutes a Superior Proposal, the MCC Board or SIC Board, as applicable, may (x) make an Adverse Recommendation Change in connection with such Superior Proposal if the board of directors effecting the Adverse Recommendation Change determines in good faith (after consultation with its outside financial advisor and legal counsel) that failure to make an Adverse Recommendation Change could reasonably be expected to be inconsistent with the fiduciary duties of the MCC Board or SIC Board, as applicable, under Applicable Law, and/or (y) authorize, adopt or approve such Superior Proposal and cause or permit MCC or SIC, as applicable, to enter into a definitive agreement with respect to such Superior Proposal concurrently with the termination of this Agreement in accordance with Section 6.02(c9.1(g) or 9.1(i), as applicable, but in each case only after providing any Notice of Adverse Recommendation or Notice of Superior Proposal, as applicable, and entering into good faith negotiations to the extent required by Section 7.10(f).
(f) Notwithstanding anything to the contrary in this Agreement, no Adverse Recommendation Change (except for any Adverse Recommendation Change resulting from a Superior Proposal made by an Excluded Party) may be made and no termination of this Agreement pursuant to Section 9.1(g) or Section 9.1(i) (except for any termination in connection with entering into a definitive agreement with an Excluded Party in respect of a Superior Proposal made by such Excluded Party or making an Adverse Recommendation Change resulting from a Superior Proposal made by an Excluded Party), as applicable, may be effected, in each case until after the third (3rd) Business Day following receipt of written notice from the party intending to effect any such Adverse Recommendation Change to the other party advising the other party that its board of directors intends to make such an Adverse Recommendation Change (a “Alternative Acquisition AgreementNotice of Adverse Recommendation”) or effect such a termination of this Agreement pursuant to Section 9.1(g) or 9.1(i), as applicable (a “Notice of Superior Proposal”); (E) take any action to exempt any Third Party from , and specifying the restrictions on “business combinations” contained in Section 203 reasons therefor, including, if the basis of the DGCL proposed action is a Superior Proposal, the material terms and conditions of any such Superior Proposal. For the avoidance of doubt, this Section 7.10(f) shall not apply to MCC in connection with, or in any other applicable Takeover Statute manner restrict MCC from, making any MCC Adverse Recommendation Change resulting from a Superior Proposal made by an Excluded Party or otherwise cause terminating this Agreement pursuant to Section 9.1(g) in connection with entering into a definitive agreement with an Excluded Party for a Superior Proposal made by such restrictions not to apply Excluded Party or (F) resolve, agree, authorize or commit to do any making an Adverse Recommendation Change resulting from a Superior Proposal from an Excluded Party. At the option of the foregoing.party not seeking to effect such a termination of this Agreement pursuant to Section 9.1(g) or 9.1(i), the parties shall negotiate in good faith during such period to amend this Agreement in such a manner
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Medley Capital Corp), Agreement and Plan of Merger (Sierra Income Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from The Company agrees that following the date of this Agreement until and prior to the earlier of the Effective Time or the termination Termination Date, neither it nor any of this Agreement in accordance with Section 8.01, its Subsidiaries nor any of the Company shall notofficers and directors of it or its Subsidiaries shall, and that it shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of each Acquired Company its Subsidiaries) not to, directly or indirectly: , initiate inquiries regarding or solicit the making of any Takeover Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning a Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, the Company and the Company's Board of Directors shall be permitted to (A) solicitcomply with Rule 14d-9, initiate, seek Rule 14e-2 and other applicable rules promulgated under the Exchange Act with regard to a Takeover Proposal or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate engage in any discussions or negotiations with, or furnish provide any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third PartyPerson in response to an unsolicited Takeover Proposal by any such Person; provided, in each case, with respect to, or that could reasonably be expected prior to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release its receipt of any Third Party under any standstill or information from the Company, such Person shall be required to enter into a customary confidentiality agreement; provided that notwithstanding agreement with the foregoing, Company containing terms no less restrictive than the terms of the Confidentiality Agreement and the Company shall be permitted provide Parent with copies of all information provided to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party such Person to the extent that such agreement or obligation prohibits a confidential proposal being made information has not been previously provided to Parent; provided, further that any information provided to such Person shall be concurrently provided to the Parent. The Company Board or the Special Committee if the Company Board (acting upon the recommendation agrees that it will, and will cause its officers, directors and representatives to, immediately cease and cause to be terminated any negotiations existing as of the Special Committee) has determined in good faith, after consultation date of this Agreement with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract parties conducted heretofore with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action Takeover Proposal. The Company agrees that it will use reasonable best efforts to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 promptly inform its directors, officers, key employees, agents and representatives of the DGCL obligations undertaken in this Section 5.4. Nothing in this Section 5.4 shall permit Parent or any other applicable Takeover Statute or otherwise cause such restrictions not the Company to apply or terminate this Agreement (F) resolve, agree, authorize or commit to do any of the foregoingexcept as specifically provided in Article VII).
Appears in 2 contracts
Sources: Merger Agreement (Enstar Group Inc), Merger Agreement (Castlewood Holdings LTD)
No Solicitation. Except as permitted by this Section 6.02, during (a) The Company shall immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal and shall seek to have returned to the period from Company any confidential information that has been provided in any such discussions or negotiations. From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company shall not, and nor shall (i) cause it permit any of its Subsidiaries and the respective directors and officers to, nor shall it authorize or permit any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the officers, directors, or employees or any Affiliate, investment banker, financial advisor, attorney, accountant, or other Representatives representative retained by it or any of each Acquired Company not its Subsidiaries to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating which has not been previously publicly disseminated), or take any other action intended to facilitate, any Acquired Company) inquiries or the making of any inquiry, discussion, offer or request that proposal which constitutes, or could may reasonably be expected to lead to, an Acquisition Proposal, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Takeover Proposal; provided, however, that following the receipt of a Superior Proposal or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could a proposal which is reasonably be expected to lead toto a Superior Proposal that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of this Agreement, an Acquisition Proposalthe Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(c), (A) request information from the Person making such Takeover Proposal for the purpose of the Board of Directors of the Company informing itself about the Takeover Proposal that has been made and the Person that made it, (B) furnish information with respect to the Company to the Person making such Takeover Proposal pursuant to a confidentiality agreement, provided that (1) such confidentiality agreement contains substantially the same terms as (or terms no less favorable to the Company) than those contained in the Confidentiality Agreement dated as of February 27, 2004 between Parent and the Company (as it may be amended, the “Confidentiality Agreement”) and (2) the Company advises Parent of all such nonpublic information delivered to such Person concurrently with its delivery to the requesting Person, and (C) grant participate in negotiations with such Person regarding such Takeover Proposal; provided, further, that the actions described in clauses (B) and (C) of the immediately preceding proviso may be taken only on or before the date the Company Shareholder Approval is obtained. It is agreed that any waiverviolation of the restrictions set forth in the preceding sentence by any executive officer, amendment director, investment banker, attorney, or release other advisor or representative of the Company or any Third Party under of its Subsidiaries shall be deemed to be a breach of this Section 5.2(a) by the Company.
(b) Except as expressly permitted in this Section 5.2(b), neither the Board of Directors of the Company nor any standstill committee thereof shall (i) withdraw, qualify, or modify, or propose publicly to withdraw, qualify, or modify, in a manner adverse to Parent, the approval, determination of advisability, or recommendation by such Board of Directors or such committee of this Agreement, the Merger, and the other transactions contemplated hereby, (ii) approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, any Takeover Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Takeover Proposal (other than a confidentiality agreement; provided that notwithstanding agreement referred to in Section 5.2(a)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, in response to a Superior Proposal that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of this Agreement, after considering applicable provisions of state law and after consultation with its outside financial and outside legal advisorscounsel, that the failure to take such action do so would be inconsistent with its fiduciary duties to the Company’s shareholders under Applicable Lawapplicable law, the Board of Directors of the Company may, prior to the earlier to occur of (i) the Company Shareholder Approval and (ii) the six week anniversary of the date of this Agreement and subject to compliance with all of the requirements of this Section 5.2(b) and to compliance with Sections 5.2(a) and 5.2(c), (Dx) approvewithdraw or modify its approval, endorse, recommend or enter intodetermination of advisability, or publicly propose recommendation of this Agreement, the Merger, and the other transactions contemplated hereby or (y) determine to approvebe advisable or recommend a Superior Proposal; provided, endorsehowever, recommend that any actions described in clause (x) or enter into(y) may be taken only at a time that is after the second business day following Parent’s receipt of written notice from the Company advising Parent that the Board of Directors of the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal.
(c) In addition to the obligations of the Company set forth in Sections 5.2(a) and 5.2(b), the Company shall promptly advise Parent in writing of (i) any letter request for confidential information in connection with a Takeover Proposal, (ii) any Takeover Proposal, (iii) the material terms and conditions of intentsuch request or such Takeover Proposal, memorandum (iv) the identity of understandingthe Person making such request or such Takeover Proposal, agreement and (v) any requests made by the Company for information about the Takeover Proposal or the Person that made it, and the Company shall keep Parent promptly advised of all significant developments in principlerespect of such Takeover Proposal.
(d) Nothing contained in this Section 5.2 shall prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company’s shareholders; provided, acquisition agreementhowever, merger agreement or other Contract with respect to neither the Company nor its Board of Directors nor any Acquisition Proposal other than an Acceptable Confidentiality Agreement committee thereof shall, except as in accordance with Section 6.02(c5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination or recommendation or approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal.
(e) (an “Alternative Acquisition For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 2 contracts
Sources: Merger Agreement (Isco Inc), Merger Agreement (Isco Inc)
No Solicitation. Except (a) The Seller agrees that, except as authorized or permitted by in this Section 6.027.2, during the period from the date neither it nor any of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company shall notits Subsidiaries shall, and that it shall not authorize or permit any of its or its subsidiaries’ directors, officers, employees, affiliates, agents, investment bankers, financial advisors, attorneys, accountants, brokers, finders, consultants or representatives (icollectively, ‘‘Representatives’’) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: , (Ai) solicit, initiate, seek knowingly encourage or knowingly encourage facilitate (including by way of furnishing non-public or disclosing nonpublic information relating or permitting access to personnel or facilities) any inquiries, proposals, or the making of any offers (including without limitation any offers to the Stockholders) with respect to any Acquired CompanyAcquisition Proposal, (ii) participate in any inquiry, discussion, offer discussions or request that constitutesnegotiations with, or could provide any information to, any Person (other than Parent) with respect to, or that reasonably may be expected to lead to, an Acquisition Proposal, (Biii) enter intointo any agreement providing for an Acquisition Proposal, continue or (iv) approve or recommend or consummate an Acquisition Proposal.
(b) Notwithstanding Section 7.2(a), the Seller or its Representatives may furnish or cause to be furnished nonpublic information to, and negotiate or otherwise participate engage in discussions with, any Person that has made, after the date of this Agreement, a bona fide unsolicited Acquisition Proposal if and only to the extent that (i) the Acceptance Date has not occurred and shares of Seller Common Stock have not been purchased in the Offer, (ii) the board of directors of the Seller determines in good faith, after consultation with its financial advisor, that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal and (iii) prior to furnishing any nonpublic information to such Person, the Seller shall enter into a confidentiality agreement with such Person that contains confidentiality and other provisions that are substantially similar to and no less favorable to Seller than the Confidentiality Agreement dated as of December 7, 2006 by and between Parent and Seller (the ‘‘Confidentiality Agreement’’); provided, however, that Seller shall promptly provide Parent with any nonpublic information provided to any third party under this Section 7.2(b) if such information has not previously been provided to Parent together with a list of all other information provided to any third party.
(c) Upon execution of this Agreement, the Seller shall cease immediately and cause to be terminated any and all existing activities, discussions or negotiations with, or furnish with any non-public information relating to the Acquired Companies parties conducted heretofore with respect to, or afford access that may reasonably be expected to the books or records or officers lead to, an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Acquired Companies Seller be returned or destroyed. The Seller shall not modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Third Partyconfidentiality or standstill provision entered into with any third party.
(d) Except as otherwise provided in Section 7.2(e), neither the board of directors of the Seller nor any committee of the board of directors of the Seller may (i) withdraw, qualify or modify in each casea manner adverse to Parent, with respect tothe approval of the board of directors of this Agreement and the Seller Recommendations, or fail to reaffirm the Seller Recommendations within four (4) Business Days following a request by the Parent or propose publicly to approve or recommend, an Acquisition Proposal (any of the foregoing, including if effected by amendment to the Schedule 14D-9, an ‘‘Adverse Recommendation Change’’), (ii) authorize or permit the Seller or any of its Subsidiaries to enter into any binding agreement (each, an ‘‘Acquisition Agreement’’) contemplating, or that could reasonably be expected to lead to, an Acquisition ProposalProposal (other than a Confidentiality Agreement in compliance with Section 7.2(b)).
(e) Notwithstanding Section 7.2(d), (C) grant at any waiver, amendment or release time prior to the purchase of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding share of Seller Common Stock into the foregoingOffer, the Company shall be permitted to grant a waiver board of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation directors of the Special CommitteeSeller or a committee of the board of directors of the Seller may (1) has determined make an Adverse Recommendation Change if, the board of directors of the Seller determines in good faith, faith after consultation with its outside financial and outside legal advisorscounsel, that failure to take such action would be inconsistent with its the directors’ fiduciary duties to the Seller or its Stockholders under Applicable Lawapplicable Law or (2), (D) approve, endorse, recommend or enter into, or publicly propose in response to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any a bona fide written Acquisition Proposal other than an Acceptable Confidentiality made after the date hereof that was not solicited in violation of Section 7.2(a), terminate this Agreement in accordance with Section 6.02(c9.1(h) (including termination in connection with entering into an “Alternative Acquisition Agreement”) if, after consultation with its financial advisors, the board of directors of the Seller determines in good faith that such Acquisition Proposal constitutes a Superior Proposal (a ‘‘Subsequent Determination’’); provided, however, that such actions may only be taken at a time that is after, (EI) take any action to exempt any Third Party as applicable, the fourth (4th) Business Day following Parent’s receipt of written notice from the restrictions on “Seller that the board of directors of the Seller is prepared to take such action (which notice will specify the material terms of any applicable Acquisition Proposal) and (II) at the end of such period, the board of directors of the Seller determines in good faith, after taking into account all amendments or revisions irrevocably committed to by Parent and after consultation with its financial advisors, that such Acquisition Proposal remains a Superior Proposal relative to the Transaction, as supplemented by any Counterproposal (it is agreed that if the third party making the Acquisition Proposal referred to in this sentence modifies a material term of its proposal, the four (4) Business Day period referred to in this sentence shall recommence). During any such four (4) Business Day period, Parent shall be entitled to deliver to the Seller a counterproposal to such Acquisition Proposal (a ‘‘Counterproposal’’) and the Seller shall in good faith negotiate such Counterproposal with Parent.
(f) From and after the execution of this Agreement, Seller shall notify the Parent promptly (but in any event within twenty four hours) of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, proposals or expressions of interest with respect to, or that may reasonably be expected to lead to, an Acquisition Proposal (including a summary of the material terms and conditions thereof, including price, and the identity of the Person or Persons involved). The Seller shall keep the Parent reasonably informed as to material developments in such discussions or negotiations with, or modifications of the proposals of, other Persons.
(g) Nothing in this Section 7.2 shall prohibit the Seller from complying with Rule 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Acquisition Proposal if, in the good faith judgment of the board of directors of the Seller, after consultation with its outside counsel, doing so would be inconsistent with its obligations under applicable Laws.
(h) For the purposes of this Agreement, ‘‘Superior Proposal’’ shall mean any bona fide unsolicited written Acquisition Proposal (with all references to 20% in the definition of Acquisition Proposal being treated as references to 50% for these purposes) made by an unrelated third party which the board of directors of the Seller determines in good faith, after consultation with its financial advisor, to be more favorable to the Stockholders than the transactions contemplated by this Agreement from a financial point of view, taking into account all financial, regulatory, legal and other aspects of such Acquisition Proposal, including the likelihood of consummation.
(i) For purposes of this Agreement, ‘‘Acquisition Proposal’’ means any proposal or offer for a direct or indirect (i) merger, tender offer, recapitalization, reorganization, liquidation, dissolution, business combinations” contained combination or consolidation, or any similar transaction, involving the Seller or a subsidiary(ies) thereof, (ii) sale, lease exchange, mortgage, pledge, transfer or other acquisition or assumption of 20% or more of the fair value of the assets of the Seller and subsidiaries, taken as a whole, in one or a series of related transactions, or (iii) purchase, tender offer or other acquisition (including by way of merger, consolidation, share exchange or otherwise) of beneficial ownership (the term ‘‘beneficial ownership’’ for purposes of this Agreement having the meaning assigned thereto in Section 203 13(d) of the DGCL Exchange Act and the rules and regulations thereunder) of securities representing twenty percent (20%) or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any more of the foregoingvoting power of the Seller; provided, however, that the term ‘‘Acquisition Proposal’’ shall not include the Transaction or the other transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Digitas Inc), Merger Agreement (Digitas Inc)
No Solicitation. Except as permitted by (a) Subject to the remainder of this Section 6.025.02, during the period from the date of this Agreement until the earlier of the Effective Time or and the termination of this Agreement in accordance with Section 8.01pursuant to Article VII, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts not to cause permit any Representative of the Company or its Subsidiaries to, (i) solicit, initiate or knowingly encourage, directly or indirectly, the submission of any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal, or (iii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or knowingly take any other Representatives of each Acquired Company not action to, directly or indirectly: (A) solicit, initiate, seek facilitate any inquiries or knowingly encourage (including by way the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request proposal that constitutes, or could may reasonably be expected to lead to, an any Acquisition Proposal, .
(Bb) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating Notwithstanding anything to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, contrary in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingthis Agreement, the Company shall be permitted may, in response to grant a waiver of or terminate any “standstill” or similar agreement or obligation an Acquisition Proposal that was not the result of any Third Party actions prohibited in paragraph (a) above and that was received at any time prior to the extent such agreement or obligation prohibits a confidential proposal being made to receipt of the Company Stockholder Approval, and which the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines, in good faith, after consultation with its outside legal counsel and financial advisor, may reasonably be expected to lead to a Superior Proposal (as defined below) and outside legal advisors, that failure the following actions are required for the Company Board to take such action would be inconsistent act in a manner consistent with its fiduciary duties to the Company Stockholders under Applicable applicable Law, (Dx) approveenter into a customary confidentiality agreement with the person making such Acquisition Proposal having terms and conditions not in the aggregate materially more favorable to such person than the terms of the Confidentiality Agreement are to Parent, endorse(y) furnish, recommend 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 enter intonegotiations with such person and its Representatives regarding any Acquisition Proposal; provided, however, that the Company shall promptly provide to Parent any non-public information concerning the Company or any Subsidiary that is provided to the person making such Acquisition Proposal or its Representatives which was not previously provided to Parent; provided further, however, that the Company shall also promptly (and in any event within 48 hours) notify Parent of the receipt of each Acquisition Proposal, set forth in reasonable detail the material terms and conditions of the Acquisition Proposal (including, without limitation, information relating to the financing) and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of this Agreement, identify the party submitting the Acquisition Proposal, and thereafter shall keep Parent reasonably informed of the status and material terms and conditions of such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall (i) withdraw (or modify in a manner adverse to Parent), or publicly propose to approvewithdraw (or modify in a manner adverse to Parent), endorsethe recommendation of this Agreement by the Company Board or any such committee, recommend (ii) approve or recommend, or publicly propose to approve or recommend, the approval or adoption of any Acquisition Proposal, or resolve or agree to take any such action, 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, merger option agreement, joint venture agreement, partnership agreement or other Contract with respect similar agreement constituting or related to, or that is intended to or may reasonably be expected to lead to, any Acquisition Proposal Proposal, other than any confidentiality agreement referred to in Section 5.02(b).
(d) Notwithstanding the foregoing, at any time prior to the time when the Company Stockholder Approval has been obtained:
(i) upon having received an Acceptable Confidentiality Acquisition Proposal that the Company Board concludes constitutes a Superior Proposal, the Company Board may withhold, withdraw or modify its recommendation of this Agreement and the Merger, approve or recommend the Superior Proposal or terminate this Agreement pursuant to Section 7.01(c) and shall promptly notify Parent in accordance writing of any such determination.
(ii) In circumstances other than as provided in Section 5.02(d)(i) above, the Company Board may, if it determines in good faith, after consulting with Section 6.02(coutside legal counsel, that the failure to take such action could result in a breach of the Company Board’s fiduciary obligations under applicable Law, withhold, withdraw or modify, or propose publicly to withhold, withdraw or modify, the recommendation by the Company Board or any committee thereof of this Agreement and the Merger, but only after (A) the Company has notified Parent in writing that the Company Board is prepared to make the determination set forth in this clause (ii), (B) for a period of five (5) Business Days following Parent’s receipt of the notice set forth in clause (A) of this sentence, the Company negotiates with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to proceed with its recommendation of this Agreement and the Merger and (C) at the end of such five (5) Business Day period the Company Board maintains its determination described in this clause (ii) (an “Alternative Acquisition after taking in account such adjustments to the terms and conditions of this Agreement”); .
(Ee) take any action to exempt any Third Party from the restrictions on “business combinations” Nothing contained in this Section 203 5.02 shall prohibit the Company from taking and disclosing to the Company Stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company Stockholders if, in the good faith judgment of the DGCL or any other Company Board, after consultation with outside legal counsel, failure so to disclose would be inconsistent with its fiduciary obligations under applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingLaw.
Appears in 2 contracts
Sources: Merger Agreement (Northwestern Corp), Merger Agreement (Northwestern Corp)
No Solicitation. Except as permitted by this Section 6.02, during During the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01pursuant to its terms or the Effective Time, the Company agrees that:
(a) The Company shall not, and nor shall (i) cause it authorize or permit any of its Subsidiaries and the respective officers, directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the or employees or any investment banker, attorney or other Representatives of each Acquired Company not advisor or representative retained by it to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage the submission of any Takeover Proposal (including by way of furnishing non-public information relating as hereinafter defined) or (ii) participate in any discussions or negotiations regarding, or furnish to any Acquired Companyperson (other than Parent) that has advised the Company that it may be considering making, or that has made, a Takeover Proposal, any inquirynonpublic information with respect to, discussion, offer or request take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition any Takeover Proposal; provided, however, (Band notwithstanding anything in this Agreement) enter intothat if, continue or otherwise participate in at any discussions or negotiations with, or furnish any non-public information relating time prior to the Acquired Companies to, or afford access to Effective Time the books or records or officers Board of Directors of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and outside legal advisorscounsel, (i) that failure to take such action complying with the provisions of the preceding sentence would not be inconsistent with in compliance with, or would create a substantial risk of liability for breach of, its fiduciary duties to the Company's stockholders under Applicable Lawapplicable law and (ii) that such Takeover Proposal constitutes a Superior Proposal (as hereinafter defined), the Company may, in response to a Takeover Proposal that was unsolicited or that did not otherwise result from a breach of this Section 4.2(a), and subject to compliance with Section 4.2(c), (Dx) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract furnish information with respect to the Company to any Acquisition person pursuant to a customary and reasonable confidentiality agreement and (y) participate in negotiations regarding such Takeover Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) and (an “Alternative Acquisition Agreement”); (Ez) take any action to exempt any Third Party from such other actions as are consistent with the restrictions on “business combinations” contained in Section 203 fiduciary duties of the DGCL Company's Board of Directors, and such actions shall not be considered a breach of this Section 4.2 or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any provisions of this Agreement. Without limiting the foregoing., it is
Appears in 2 contracts
Sources: Merger Agreement (Irvine Horace H Ii), Merger Agreement (Hadco Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall and its subsidiaries and affiliates will not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct its subsidiaries and affiliates will use its their reasonable best efforts to cause the ensure that their respective officers, directors, employees, investment bankers, attorneys, accountants and other Representatives of each Acquired Company not toagents do not, directly or indirectly: (Ai) solicit, initiate, seek solicit or knowingly encourage encourage, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Alternative Transaction (including by way as defined below) with respect to the Company or any of furnishing non-public its subsidiaries or an inquiry with respect thereto, or, (ii) in the event of an unsolicited Alternative Transaction for the Company or any of its subsidiaries, engage in negotiations or discussions with, or provide any information or data to any person relating to any Acquired Alternative Transaction, subject to the Board's good faith determination, after consulting with outside legal counsel to the Company) any inquiry, discussion, offer that the failure to engage in such negotiations or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public provide such information relating to the Acquired Companies to, or afford access to the books or records or officers would likely result in a breach of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its Board's fiduciary duties under Applicable Lawapplicable law if such Alternative Transaction would provide the Company Stockholders with a purchase price per Share that is higher (the amount of such excess in the purchase price per Share is hereinafter referred to as the "Spread") than the Merger Consideration to be received by the Company Stockholders. The Company shall notify Gaming and RAS orally and in writing of any such inquiries, offers or proposals (D) approveincluding, endorsewithout limitation, recommend or enter intothe terms and conditions thereof and the identity of the person making such), or publicly propose within twenty four hours of the receipt thereof. The Company shall, and shall cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, immediately cease and cause to approvebe terminated all existing discussions and negotiations, endorseif any, recommend or enter into, with any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract parties conducted heretofore with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take Transaction relating to the Company or any action of its subsidiaries. Notwithstanding anything to exempt any Third Party from the restrictions on “business combinations” contrary, nothing contained in this Section 203 4.9 shall prohibit the Company or the Board from communicating to the Company Stockholders a position as required by Rules 14d-9 and 14a-2 promulgated under the Exchange Act.
(b) As used in this Agreement, "Alternative Transaction" shall mean any tender or exchange offer for the Common Stock or for the equivalent securities of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingCompany's subsidiaries, any proposal for a merger, consolidation or other business combination involving any such person, any proposal or offer to acquire in any manner a ten percent or more equity interest in, or ten percent or more of the business or assets of, such person, any proposal or offer with respect to any recapitalization or restructuring with respect to 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 "Alternative Transaction" shall not apply to any transaction of the type described in this subsection (b) involving Gaming, RAS or their affiliates.
Appears in 2 contracts
Sources: Merger Agreement (Paulson Allen E), Merger Agreement (Riviera Holdings Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and nor shall (i) cause it authorize or permit any of its Subsidiaries and the or any of their respective directors and directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) retained by it or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not Subsidiaries to, directly or indirectly: indirectly through another person, (Ai) solicit, initiate, seek initiate or knowingly encourage or facilitate any Takeover Proposal or (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public information relating to the Acquired Companies person any information, or otherwise cooperate in any way with, any Takeover Proposal. The Company shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or afford access negotiations with any person conducted heretofore with respect to any Takeover Proposal and request the books prompt return or records or officers destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval, in response to a bona fide written Takeover Proposal that the Board of Directors of the Acquired Companies to, any Third Party, Company determines in each case, good faith (after consultation with respect to, outside counsel and a financial advisor of nationally recognized reputation) constitutes or that could would reasonably be expected to lead to, an Acquisition to a Superior Proposal, (C) grant any waiver, amendment or release and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingthis Section 4.02(a), the Company shall be permitted to grant a waiver may, if its Board of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors determines in good faith, faith (after consultation with its outside financial and outside legal advisors, counsel) that the failure to take such action do so would be inconsistent with its fiduciary duties to the stockholders of the Company under Applicable Lawapplicable law, and subject to compliance with Section 4.02(c), (Dx) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract furnish information with respect to any Acquisition the Company and its Subsidiaries to the person making such Takeover Proposal other (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than an Acceptable the Confidentiality Agreement Agreement; provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (y) participate in accordance discussions or negotiations with Section 6.02(cthe person making such Takeover Proposal (and its Representatives) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable regarding such Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingProposal.
Appears in 2 contracts
Sources: Merger Agreement (Millipore Corp /Ma), Merger Agreement (Serologicals Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement until the earlier to occur of the Effective Time or the termination of this Agreement in accordance with Section 8.01pursuant to Article VII or the Offer Closing, the Company shall notnot (and the Company shall not permit any of its officers, employees or directors to, and shall use commercially reasonable efforts to prevent any investment banker, financial advisor, attorney, accountant or other representative retained by it or its Affiliates from taking any action to) directly or indirectly (i) cause its Subsidiaries and solicit, encourage, engage in discussions or negotiate with any Person that could submit a bona fide offer (whether such discussions or negotiations are initiated by the respective directors and officers Company or otherwise) or take any other action intended or designed to facilitate, any inquiry or effort of each Acquired Company and any Person that could submit a bona fide offer (other than Parent or Sub) relating to any Alternative Acquisition, (ii) instruct and use its reasonable best efforts provide information with respect to cause the Company to any Person, other Representatives than Parent, relating to a possible Alternative Acquisition by any Person, other than Parent, (iii) enter into an agreement with any Person, other than Parent, providing for a possible Alternative Acquisition or (iv) make or authorize any statement, recommendation or solicitation in support of each Acquired Company not any possible Alternative Acquisition by any Person, other than by Parent. Notwithstanding the foregoing, if, prior to the acceptance for payment of Shares pursuant to, directly or indirectly: and subject to the conditions of, the Offer, (A) solicitthe Company has received an unsolicited written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that did not result from a breach of the first sentence of this Section 5.3(a) and (B) the Company Board concludes in good faith (after consultation with its financial advisor and independent counsel) (1) that such Alternative Acquisition Proposal is or, initiatein the good faith judgment of the Company Board, seek or knowingly encourage would reasonably be expected to lead to a Superior Company Proposal (as defined in Section 5.3(e)) and (2) that such actions are necessary in order to comply with the fiduciary obligations of the Company Board under Nevada law, the Company may, subject to providing prior written notice to Parent of its decision to take such action, (x) furnish information with respect to the Company to the Person making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement on customary terms (it being understood that such confidentiality agreement shall not prohibit disclosure to Parent of the terms and conditions of such Alternative Acquisition Proposal, including by way the identity of furnishing non-public information relating the Person making such Alternative Acquisition Proposal and any material changes thereto) and (y) participate in discussions and negotiations with such Person and its representatives. Upon execution of this Agreement, the Company shall, and shall cause its representatives to, cease immediately all discussions and negotiations that may have occurred prior to the date of this Agreement regarding any Acquired Company) any inquiry, discussion, offer or request proposal that constitutes, or could would reasonably be expected to lead to, an Alternative Acquisition Proposal. For purposes of this Section 5.3, the term “Person” shall include any “group” as defined in Rule 13d-5 under the Exchange Act.
(b) The Company Board shall not (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board of this Agreement, the Offer or the Merger, (ii) approve or cause or permit the Company to enter into any letter of intent, agreement in principle, definitive agreement or similar agreement constituting or relating to, or which is intended to or is reasonably likely to lead to, any Alternative Acquisition Proposal, (Biii) enter intoapprove or recommend, continue or otherwise participate propose to approve or recommend, any Alternative Acquisition Proposal or (iv) agree or resolve to take actions set forth in clauses (i), (ii) or (iii) of this sentence. Notwithstanding the foregoing, if, during the period prior to the acceptance for payment of Shares pursuant to the Offer, the Company Board receives a Superior Company Proposal that did not result from a breach of the first sentence of Section 5.3(a) and the Company Board determines in good faith, after consultation with independent counsel, that it is necessary to do so in order to comply with its fiduciary obligations under Nevada law, the Company Board may, during such period, in response to such a Superior Company Proposal, withdraw or modify its approval or recommendation of the Offer, the Merger and this Agreement and, in connection therewith, approve or recommend such Superior Company Proposal at any time after the third Business Day following Parent’s receipt of written notice from the Company advising Parent that the Company Board has received a Superior Company Proposal and intends to withdraw or modify its recommendation, identifying the Person making such Superior Company Proposal and specifying the financial and other material terms and conditions of such Superior Company Proposal (it being understood and agreed by the parties that such withdrawal or modification of the Company Board’s recommendation shall not alter the Company Board’s approval of this Agreement, the Stockholder Agreement to Tender and the Transactions (including for purposes of Section 78.411, et seq., of the NGCL)).
(c) The Company promptly, and in any discussions event within two (2) Business Days of its receipt thereof, shall advise Parent orally and in writing of any Alternative Acquisition Proposal or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, inquiry with respect to, to or that could reasonably be expected to lead to, an to any Alternative Acquisition Proposal, (C) grant the identity of the Person or group making any waiver, amendment such Alternative Acquisition Proposal or release inquiry and the material terms of any Third Party under such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably informed of the status, including any standstill change to the details, of any such Alternative Acquisition Proposal or confidentiality agreement; provided that notwithstanding the foregoing, inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof (and in any event within two (2) Business Days) with copies of all material correspondence and other written material received by the Company from any Person in connection with any Alternative Acquisition Proposal or inquiry or sent or provided by the Company to any Person in connection with any Alternative Acquisition Proposal or inquiry.
(d) Nothing contained in this Section 5.3 shall be permitted prohibit the Company from taking and disclosing to grant its stockholders a waiver of position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or terminate from making any “standstill” or similar agreement or obligation of any Third Party required disclosure to the extent such agreement or obligation prohibits a confidential proposal being made to Company’s stockholders if, in the good faith judgment of the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faithBoard, after consultation with its outside financial and outside legal advisors, that failure so to take such action would disclose could be inconsistent with its fiduciary duties obligations under Applicable Lawapplicable law.
(e) For purposes of this Agreement, (D) approve“Superior Company Proposal” means any written, endorse, recommend or enter into, or publicly propose bona fide proposal made by a third party relating to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action that is on terms that the Company Board determines in its good faith judgment to exempt any Third Party from be more favorable to the restrictions on “business combinations” contained in Section 203 holders of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of Shares than the foregoingOffer and the Merger.
Appears in 2 contracts
Sources: Tender Offer Agreement (Unioil), Tender Offer Agreement (Petroleum Development Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and shall (i) cause its Subsidiaries not to and the shall not permit its and their respective directors officers, directors, employees, representatives (including investment bankers, attorneys and officers of each Acquired Company accountants) and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not agents to, directly or indirectly: (A) , solicit, initiate, seek participate in any way in, or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies with respect to, or provide any information, or afford any access to the properties, books or records or officers of the Acquired Companies toCompany or any of its Subsidiaries, or otherwise take any action to knowingly assist, any Third Party, Person in each case, with respect toof, or that could reasonably be expected to lead to, any Acquisition Proposal (as defined below). Notwithstanding the foregoing and subject to compliance with Section 6.02(c), upon the prior execution by such Person of a confidentiality agreement that is no less favorable to the Company than the Confidentiality Agreement, the Company may, at any time prior to the purchase of Shares pursuant to the Offer, furnish information (so long as all such information has previously been made available to Parent or is made available to Parent prior to or concurrently with the time it is made available to such Person) to or enter into discussions or negotiations with any Person that has made an unsolicited bona fide Acquisition Proposal not resulting from a breach of this Section 6.02 received after the date hereof that the Company Board (after consultation with its outside financial advisor and outside counsel and after taking into account the legal, financial, financing, regulatory and other aspects of such Acquisition Proposal, to the extent known) determines is or is reasonably likely to lead to a Superior Proposal if, and only to the extent (i) that the Company has complied with its obligations under this Section 6.02, (ii) that, and for so long as, the Company Board, after consultation with outside legal counsel to the Company, determines in good faith that failure to do so would be inconsistent with the fiduciary duties of the Company Board to the stockholders of the Company under applicable law and (iii) the Company has promptly (and in any event within 24 hours) provided Parent written notice of its intent to take any such action (which notice shall include the identity of the Person making such Acquisition Proposal and the terms of such Acquisition Proposal). The Company will keep Parent and Purchaser reasonably informed of the status of any such discussions or negotiations and shall promptly (and in any event within 24 hours) notify Parent and Purchaser orally and in writing of any modifications to the financial or other material terms of any such Acquisition Proposal.
(b) The Company will, and will cause its Subsidiaries and its and their respective officers, directors, employees, representatives, agents and Affiliates to, immediately cease and cause to be terminated any existing activities, discussions, or negotiations with any Persons other than Parent, Purchaser or any of their respective Affiliates or Associates conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Unless and until this Agreement has been terminated in accordance with Section 8.01 and except as expressly permitted by Section 6.02(d) or (e), neither the Company nor the Company Board shall (i) withdraw, modify or qualify, or publicly propose to withdraw, modify or qualify, in a manner adverse to Parent or Purchaser, the approval or recommendation of the Offer or the Merger as described in Section 1.02(a)(ii), (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (Ciii) release any third party from any confidentiality (in the context of an Acquisition Proposal) or standstill agreement to which the Company is a party, or fail to enforce to the fullest extent possible, or grant any waiver, amendment request or release consent to any Acquisition Proposal under, any such agreement, or (iv) otherwise enter into any letter of intent, agreement in principle, acquisition agreement or other agreement (other than a confidentiality agreement with a Person making an Acquisition Proposal pursuant to Section 6.02(a)) related to any Acquisition Proposal (any action described in clause (i), (ii) or (iii), a “Change of Recommendation”). Without limiting any other rights of Parent and Purchaser under this Agreement in respect of any Third Party under such action, any standstill Change of Recommendation or confidentiality agreement; provided that notwithstanding any termination of this Agreement shall not have any effect on the foregoingapprovals of, and other actions referred to herein for the purpose of causing the Takeover Laws and the Confidentiality Agreement to be inapplicable to, this Agreement and the transactions contemplated hereby, which approvals and actions are irrevocable.
(d) Notwithstanding the provisions of Section 6.02(c), the Company shall be permitted to grant Board may effect a waiver Change of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee Recommendation if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and outside legal advisorscounsel, that the failure to take such action do so would be inconsistent with its fiduciary duties to the stockholders of the Company under Applicable Lawapplicable law and, in the case where such determination is made in response to an Acquisition Proposal, the Company has provided Parent prior written notice of its intent to take such action not less than three Business Days prior to taking such action and has otherwise complied with the negotiation provisions contained in Section 8.01(e).
(De) approve, endorse, recommend Nothing contained in this Section 6.02 shall prohibit the Company or enter into, or publicly propose the Company Board from taking and disclosing to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract the Company’s stockholders a position with respect to any a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided, however, that such action will be deemed to constitute a Change of Recommendation unless the disclosure (i) is of the type contemplated by Rule 14d-9(f) under the Exchange Act, or (ii) rejects or recommends against the Acquisition Proposal and reaffirms the Company Board’s recommendation of the Offer or the Merger.
(f) For purposes of this Agreement, (i) “Acquisition Proposal” means any offer or proposal, or any indication of interest in making an offer or proposal, made in writing by a Person or group (as defined in Section 13(d)(3) of the Exchange Act) at any time which is structured to permit such Person or group to acquire beneficial ownership of at least 15% of the assets of, equity interest in, or businesses of, the Company and its Subsidiaries, taken as a whole, pursuant to a merger, recapitalization, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or similar transaction, including any single or multi-step transaction or series of related transactions, in each case other than an Acceptable Confidentiality Agreement the Offer and the Merger and (ii) “Superior Proposal” means any unsolicited, bona fide Acquisition Proposal (except the reference therein to “15%” shall be replaced by “50%”) that is on terms that the Company Board has reasonably determined in accordance good faith (after consultation with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from its outside financial advisor and outside counsel and after taking into account the restrictions on “business combinations” contained in Section 203 legal, financial, financing, regulatory and other aspects of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not proposal) would result in a transaction that is (x) more favorable from a financial point of view to apply or the Company’s stockholders than the Offer and the Merger, and (Fy) resolve, agree, authorize or commit is reasonably likely to do any of be consummated on the foregoingterms proposed.
Appears in 2 contracts
Sources: Merger Agreement (Evraz Group S.A.), Merger Agreement (Claymont Steel Holdings, Inc.)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and nor shall (i) cause it permit any of its Subsidiaries and to, or authorize or permit any director, officer or employee of the respective directors and officers Company or any of each Acquired its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company and or any of its Subsidiaries (iicollectively, the “Representatives”) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (Bi) solicit or initiate or take any other action knowingly to facilitate or encourage, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any Person any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected any Takeover Proposal except to lead tonotify such Person of the existence of this provision; provided, an Acquisition Proposalhowever, (C) grant that, at any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding time prior to obtaining the foregoingCompany Shareholder Approval, the Company shall be permitted to grant a waiver Board of or terminate any “standstill” or similar agreement or obligation Directors of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company may, in response to a bona fide unsolicited, written Takeover Proposal made after the date of this Agreement that the Board or the Special Committee if of Directors of the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, faith after consultation with its outside legal counsel and financial advisor constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and that did not result from a breach of this Section 4.2, provided the Board of Directors of the Company shall have determined in good faith after consultation with its outside legal advisors, counsel that the failure to take such action would be reasonably likely to be inconsistent with fulfilling its fiduciary duties under Applicable Lawapplicable law, and subject to compliance with Sections 4.2(c) and (Dd), and after providing Parent advance notice of the intention to take such actions (A) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract furnish information with respect to any Acquisition the Company and its Subsidiaries to the Person (and its representatives) making such Takeover Proposal other pursuant to a customary confidentiality agreement no less restrictive on such Person than an Acceptable the confidentiality agreement in effect between the Company and Parent (as it may be amended from time to time, the “Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); provided that all such information not previously provided to Parent is provided on a prior or substantially concurrent basis to Parent, except to the extent such information would be reasonably likely to result in competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated or such disclosure is prohibited by applicable Governmental Entities or pursuant to applicable laws, in each case relating to the exchange of information (E“Prohibited Information”), and so long as no information is provided to the Person making such Takeover Proposal that would constitute Prohibited Information with respect to such Person, and (B) take participate in discussions or negotiations with the Person (and its representatives) making such Takeover Proposal regarding such Takeover Proposal. Without limiting the foregoing, it is agreed that any action to exempt any Third Party from violation of the restrictions on “business combinations” contained set forth in Section 203 the preceding sentence by any Representative or Affiliate of the DGCL Company or any other applicable Takeover Statute of its Subsidiaries, whether or otherwise cause not such restrictions not Person is purporting to apply act on behalf of the Company or (F) resolve, agree, authorize or commit to do any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 4.2(a) by the foregoing.Company. As of the date hereof, the Company has, and has caused each of its Subsidiaries and each of the Representatives to have terminated all discussions or negotiations with all third parties regarding any Takeover Proposal and requested the
Appears in 2 contracts
Sources: Merger Agreement (Edo Corp), Merger Agreement (Itt Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall and its Subsidiaries will not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct will direct and use its reasonable best efforts to cause the its and its Subsidiaries’ respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other Representatives of each Acquired Company representatives not to, directly or indirectly: (A) , take any action to solicit, initiate, seek or knowingly encourage or knowingly facilitate the making of any Acquisition Proposal (including without limitation by way amending, or granting any waiver under, Article TWELFTH of furnishing non-public 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, 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 (ii) making any Acquired disclosure if, in the case of this clause (ii), in the good faith judgment of the Company’s Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided, however, that any such disclosure that relates to an Acquisition Proposal shall be deemed to be a 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 inquiryPerson making a bona fide, discussionwritten Acquisition Proposal to the Board of Directors of the Company after the date hereof which was not obtained as a result of a 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, offer if and only if, in any such case set forth in clause (A) or request (B) of this sentence,
(1) the Board of Directors of the Company concludes in good faith, after (x) receipt of the advice of a financial advisor of nationally recognized reputation and outside legal counsel, that constitutes, such Acquisition Proposal constitutes or could reasonably be expected to lead to, an Acquisition Proposal, result in a Superior Proposal and (By) enter into, continue or otherwise participate in taking into account any discussions or negotiations with, or furnish any non-public information relating revisions to the Acquired Companies to, or afford access to the books or records or officers terms of the Acquired Companies to, any Third Party, in each case, with respect to, Merger or that could reasonably be expected this Agreement proposed by Parent after being notified pursuant to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisorsSection 5.2(b), that failure to take such action do so would be reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under Applicable Lawapplicable 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 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 after the date of this Agreement the Company receives an Acquisition Proposal, or any request for nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or has informed the Company it is considering making, an Acquisition Proposal, the Company will (A) promptly (and in 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, (DB) approvekeep 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, endorseincluding any proposed transaction agreements (along with all schedules and exhibits thereto and any financing commitments related thereto), recommend or enter intoas well as written summaries of any material oral communications relating to the terms and conditions thereof. The Company (x) shall, or publicly propose and shall cause its Subsidiaries to, immediately cease and cause to approvebe terminated and shall use reasonable best efforts to cause its and their officers, endorsedirectors, recommend or enter intoemployees, 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 letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract Persons with respect to any Acquisition Proposal or the possibility thereof, (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the nine (9) months prior to the date hereof in 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 than information regarding the Company or any of its Subsidiaries. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any such Acquisition Proposal and 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 extent necessary to permit the party referred therein to submit an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action Proposal to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 Board of Directors of the DGCL Company on a confidential basis. The Company shall provide written notice to Parent of waiver or release of any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolvestandstill by the Company, agree, authorize or commit to do any including disclosure of the foregoingidentities of the parties thereto and circumstances relating thereto.
Appears in 2 contracts
Sources: Merger Agreement (Noble Energy Inc), Merger Agreement (Noble Energy Inc)
No Solicitation. Except as permitted by this (a) Subject to Section 6.026.3(b), during the period from the date of unless and until this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01shall have been terminated by either Party pursuant to Article VIII, the Company BPW shall not, directly or indirectly, and shall cause its Representatives not to: (i) cause solicit, encourage, initiate or participate in any negotiations, inquiries or discussions with respect to any BPW Acquisition Proposal or Business Combination (other than the transactions contemplated hereby); (ii) disclose, in connection with a BPW Acquisition Proposal or Business Combination (other than the transactions contemplated hereby), any information or provide access to its Subsidiaries properties, books or records, except as required by law or pursuant to a governmental request for information; (iii) enter into or execute any agreement relating to a BPW Acquisition Proposal or Business Combination (other than the transactions contemplated hereby or a confidentiality agreement permitted by Section 6.3(b)); (iv) fail to make, withdraw, qualify, amend or modify or publicly propose to withdraw, qualify, amend or modify the BPW Recommendation (it being understood that, subject to Section 6.3(b), taking a neutral or no position with respect to any publicly disclosed BPW Acquisition Proposal or publicly disclosed proposal with respect to any Business Combination (other than the transactions contemplated hereby) shall be considered an amendment or modification) or make or authorize any public statement, recommendation or solicitation in support of any BPW Acquisition Proposal or Business Combination (other than the transactions contemplated hereby).
(b) Notwithstanding the foregoing, in response to a bona fide, unsolicited, BPW Acquisition Proposal from a Third Party (that does not result from a breach of this Section 6.3), the BPW Board may, and may authorize and permit BPW’s Representatives to, prior to the respective directors BPW Stockholders Meeting and officers subject to compliance with the other terms of each Acquired Company this Section 6.3, (i) provide such Third Party with nonpublic information, and (ii) instruct participate in discussions and use its reasonable best efforts negotiations with such Third Party relating to cause such proposal, if and only to the other Representatives of each Acquired Company not to, directly or indirectly: extent that (A) solicitthe BPW Board, initiateafter having consulted with and considered the advice of outside counsel, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could has reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, faith that failure to take such action would be inconsistent result in a violation of applicable law, and (B) the Third Party has entered into a confidentiality agreement pertaining to nonpublic information regarding BPW containing terms in the aggregate no more favorable to the Third Party than those in the Confidentiality Agreement (including the standstill provision thereof). BPW shall provide or make available to the Company any non-public information concerning BPW provided or made available to such other Person pursuant to this Section 6.3(b) which was not previously provided or made available to the Company prior to or simultaneously with its fiduciary duties provision to such other Person.
(c) BPW shall notify the Company as soon as practicable (but in any event within 24 hours) after receipt by an officer or director of BPW or by any of BPW’s Representatives of any BPW Acquisition Proposal or an offer, inquiry or proposal relating to a Business Combination (other than the transactions contemplated by this Agreement), any inquiry or request for discussions or negotiations regarding any BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement), any request for information relating to BPW other than requests for information in the ordinary course of business and unrelated to a BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement) or for access to BPW’s properties, books or records by any person or entity that informs BPW that it is considering making, or has made, a BPW Acquisition Proposal or an offer, inquiry or proposal relating to a Business Combination (other than the transactions contemplated by this Agreement). Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact and copies of any proposed agreement relating thereto. For the avoidance of doubt, BPW shall keep the Company fully informed, on a current basis, of any material changes in the status of any such proposal, inquiry or contact, and any amendment to the financial or other terms of a BPW Acquisition Proposal shall be treated as a new BPW Acquisition Proposal for purposes of this Section 6.3. BPW shall also promptly (but in any event within 24 hours), notify the Company, orally and in writing, if it provides any nonpublic information or enters into any discussions or negotiations with respect to a BPW Acquisition Proposal in accordance with Section 6.3(b).
(d) Nothing contained in this Section 6.3 shall prohibit BPW from taking and disclosing to its stockholders a position required by Rule 14e-2 promulgated under Applicable Lawthe Exchange Act; provided, that disclosure to stockholders pursuant to Rule 14e-2 relating to a BPW Acquisition Proposal or a proposal regarding a Business Combination (other than the transactions contemplated hereby) shall be deemed to be a qualification, withdrawal or modification, of the BPW Recommendation unless the BPW Board expressly, and without qualification, reaffirms in such disclosure the BPW Recommendation.
(e) BPW agrees that it will, and that it will cause its Representatives to, (Di) approveimmediately cease and cause to be terminated any existing activities, endorse, recommend discussions or enter into, or publicly propose to approve, endorse, recommend or enter into, negotiations with any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract parties conducted heretofore with respect to any BPW Acquisition Proposal or Business Combination (other than an Acceptable Confidentiality Agreement the transactions contemplated by this Agreement), (ii) use reasonable best efforts to cause all Persons other than the Company and its Affiliates who have been furnished with confidential information regarding BPW in accordance connection with Section 6.02(cthe solicitation of or discussions regarding any BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement) within the 12 months prior to the date hereof promptly to return or destroy such information, and (an “Alternative iii) use its reasonable best efforts to enforce and not waive any provision or release any Person (other than the Company and its Affiliates) from any confidentiality, standstill or similar agreement relating to a BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement”); (E) . BPW agrees that it will take any action the necessary steps to exempt any Third Party from promptly inform the restrictions on “business combinations” contained individuals or entities referred to in Section 203 6.3(a) of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingobligations undertaken in this Section 6.3.
Appears in 2 contracts
Sources: Merger Agreement (BPW Acquisition Corp.), Merger Agreement (Talbots Inc)
No Solicitation. Except as permitted by this Section 6.02(a) None of Target, during the period from the date its Subsidiaries or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of this Agreement until the earlier Target or any of the Effective Time its Subsidiaries shall directly or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall indirectly (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage encourage, facilitate (including by way of furnishing non-public information relating information) or take any other action designed to facilitate any Acquired Companyinquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transaction involving Target or any inquiryof its Subsidiaries that, discussionif consummated, offer would constitute an Alternative Transaction (any of the foregoing inquiries or request that constitutes, or could reasonably be expected proposals being referred to lead to, herein as an Acquisition “Alternative Proposal”), (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding an Alternative Transaction, (iii) enter into any agreement regarding any Alternative Transaction or furnish any non-public information relating (iv) render a rights agreement inapplicable to an Alternative Proposal or the Acquired Companies transactions contemplated thereby. Target shall, and shall cause each of the Subsidiaries and representatives of Target and its Subsidiaries to, (A) immediately cease and cause to be terminated all existing discussions or afford access to the books or records or officers of the Acquired Companies to, negotiations with any Third Party, in each case, person conducted heretofore with respect to, or that could reasonably be expected to lead to, an Acquisition any Alternative Proposal, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) grant not terminate, waive, amend, release or modify any waiver, amendment or release provision of any Third Party under confidentiality or standstill agreement relating to any standstill Alternative Proposal to which it or confidentiality any of its Subsidiaries is a party, and shall enforce the provisions of any such agreement; provided that notwithstanding . Notwithstanding the foregoing, if at any time after the Company shall be permitted to grant a waiver date hereof but before approval of or terminate any “standstill” or similar agreement or obligation of any Third Party to this Agreement by Target’s shareholders, (1) Target receives an unsolicited written Alternative Proposal that the extent such agreement or obligation prohibits a confidential proposal being made to the Company Target Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined believes in good faithfaith to be bona fide, (2) such Alternative Proposal was not the result of a violation of this Section 6.9, (3) the Target Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Alternative Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (4) the Target Board determines in good faith (after consultation with outside financial and outside legal advisors, counsel) that the failure to take such action the actions referred to in clause (x) or (y) below would be inconsistent with reasonably likely to violate its fiduciary duties under Applicable Lawapplicable law, then Target may (Dand may authorize its Subsidiaries and representatives to) (x) furnish nonpublic information regarding Target and its Subsidiaries to the person making such Alternative Proposal (and its representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Target than, those contained in the Confidentiality Agreement (provided, that any nonpublic information provided to any person given such access shall have been previously provided to Buyer or shall be provided to Buyer before or concurrently with the time it is provided to such person), and (y) participate in discussions and negotiations with the person making such Alternative Proposal.
(b) Except as provided otherwise below, neither the Target Board nor any committee thereof may (i)(A) withdraw (or modify or qualify in any manner adverse to Buyer) or refuse to recommend approval of this Agreement to Target’s shareholders or (B) adopt, approve, endorserecommend, recommend endorse or enter intootherwise declare advisable the adoption of any Alternative Proposal (each such action set forth in this Section 6.9(b)(i) being referred to as an “Adverse Recommendation Change”), or publicly propose (ii) cause or permit Target or any of its Subsidiaries to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract agreement constituting or related to, or that is intended to or is reasonably likely to lead to, any Alternative Proposal (other than a confidentiality agreement permitted by Section 6.9(a)). Notwithstanding the foregoing, at any time before obtaining approval of the Merger by Target’s shareholders, the Target Board may, if the Target Board determines in good faith (after consultation with outside counsel) that the failure to do so would be reasonably likely to violate its fiduciary duties under applicable law, taking into account all adjustments to the terms of this Agreement that may be offered by Buyer under this Section 6.9(b), make an Adverse Recommendation Change; provided, that Target may not make any Adverse Recommendation Change in response to an Alternative Proposal unless (x) Target shall not have breached this Section 6.9 in any respect and (y):
(i) The Target Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Alternative Proposal is 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 all adjustments to the terms of this Agreement that may be offered by Buyer under this Section 6.9(b);
(ii) Target has given Buyer at least four business days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the person making such Superior Proposal; and
(iii) Before effecting such Adverse Recommendation Change, Target has negotiated, and has caused its representatives to negotiate, in good faith with Buyer during such notice period to the extent Buyer wishes to negotiate, to enable Buyer to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of such Superior Proposal, Target shall, in each case, be required to deliver to Buyer a new written notice, the notice period shall have recommenced and Target shall be required to comply with its obligations under this Section 6.9 with respect to such new written notice.
(c) In addition to the obligations of Target under Sections 6.9(a) and (b), Target shall notify Buyer promptly (but in no event later than 24 hours) after receipt of any Acquisition Alternative Proposal, or any material modification of or material amendment to any Alternative Proposal, or any request for nonpublic information relating to Target or any of its Subsidiaries or for access to the properties, books or records of Target or any Subsidiary by any person that informs the Target Board or any Subsidiary that it is considering making, or has made, an Alternative Proposal. Such notice to Buyer shall be made orally and in writing, and shall indicate the identity of the person making the Alternative Proposal other than or intending to make or considering making an Acceptable Confidentiality Agreement Alternative Proposal or requesting nonpublic information or access to the books and records of Target or any Subsidiary, and the material terms of any such Alternative Proposal or modification or amendment to an Alternative Proposal. Target shall keep Buyer fully informed, on a current basis, of any material changes in the status and any material changes or modifications in the terms of any such Alternative Proposal, indication or request. Target shall also promptly, and in any event within 24 hours, notify Buyer, orally and in writing, if it enters into discussions or negotiations concerning any Alternative Proposal in accordance with Section 6.02(c6.9(a).
(d) (an “Alternative Acquisition As used in this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 2 contracts
Sources: Merger Agreement (Community Capital Corp /Sc/), Merger Agreement (Park Sterling Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from From the date of this Agreement hereof until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with Section 8.01Agreement, the Company and its Subsidiaries shall notnot (whether directly or indirectly through advisors, agents or other intermediaries), and the Company shall cause their respective officers, directors, advisors (i) cause including its Subsidiaries financial advisors, attorneys and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the accountants), representatives or other Representatives of each Acquired Company agents not to, directly or indirectly: , (Aa) solicit, initiate, seek initiate or knowingly encourage any Acquisition Proposal (including by way of furnishing non-public information relating to any Acquired Companyas defined hereafter) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (Bb) enter into, continue or otherwise participate engage in any discussions or negotiations with, or furnish disclose any non-public information relating to the Acquired Companies to, Company or its Subsidiaries or afford access to the properties, books or records or officers of the Acquired Companies Company or its Subsidiaries to, any Third PartyPerson or group (other than Parent or any designees of Parent) concerning any Acquisition Proposal PROVIDED, HOWEVER, that if the Board of Directors of the Company determines in good faith, based on such matters as it deems relevant, acting only after consultation with WSGR (or other legal counsel of nationally recognized standing) that the failure to do so would be a breach of its fiduciary duties to the Company's stockholders under the DGCL, the Company may, in each caseresponse to an Acquisition Proposal that was not solicited and that the Board of Directors of the Company determines, with respect tobased upon the advice of CSFB (or another financial advisor of nationally recognized standing), is from a Person or group other than the Parent or its affiliates that could reasonably be expected is capable of consummating a Superior Proposal and only for so long as the Board of Directors so determines that its actions are likely to lead toto a Superior Proposal, an (i) furnish information to any such Person or group only pursuant to a confidentiality agreement substantially in the same form as was executed by Parent prior to the execution of this Agreement and only if copies of such information are concurrently provided to Parent, and (ii) participate in discussions and negotiations regarding such proposal or offer. The Company shall promptly (and in any event within one business day after becoming aware thereof) (i) notify Parent in the event the Company or any of its Subsidiaries or other affiliates or any of their respective officers, directors, employees and agents receives any Acquisition Proposal, including the material terms and conditions thereof and the identity of the party submitting such proposal, and any request for confidential information in connection with a potential Acquisition Proposal, (Cii) grant any waiver, amendment or release provide a copy of any Third Party under any standstill written agreements, proposals or confidentiality agreement; provided that notwithstanding the foregoing, other materials the Company shall be permitted receives from any such Person or group (or its representatives), (iii) provide Parent with copies of all information furnished to grant a waiver any such Person or group pursuant to clause (i) of or terminate any “standstill” or similar agreement or obligation the preceding sentence if such information has not been previously furnished to Parent and (iv) notify Parent of any Third Party to the extent such agreement material changes or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract developments with respect to any of the matters described in clauses (i) or (ii). For purposes of this Agreement, "ACQUISITION PROPOSAL" with respect to a Person means any offer or proposal for a merger, consolidation, recapitalization, liquidation or other business combination involving such Person or the acquisition or purchase of over 50% or more of any class of equity securities of such Person, or any tender offer (including self-tenders) or exchange offer that if consummated would result in any Person beneficially owning 50% or more of any class of equity securities of such Person, or a substantial portion of the assets of, such Person and its Subsidiaries taken as a whole (it being understood by the parties that the assets of the Company not constituting the Semiconductor Business are a substantial portion of the assets of the Company and its Subsidiaries, taken as a whole), other than the transactions contemplated by this Agreement (including the Semi Disposition). As used herein, a "SUPERIOR PROPOSAL" shall mean a bona fide Acquisition Proposal which in the reasonable good faith judgment of the Company's Board of Directors, based on such matters as it deems relevant, including in the case of clauses (i) and (ii) below the advice of the Company's financial advisor, (i) provides greater benefits to the Company's stockholders than those provided pursuant to this Agreement, (ii) provides that any financing required to consummate the transaction contemplated by the offer is either in the possession of the Person making such Acquisition Proposal or is likely to be obtained by such Person on a timely basis, and (iii) does not contain a "right of first refusal" or "right of first offer" with respect to any counter-proposal that Parent might make; PROVIDED, FURTHER, that the Board of Directors of the Company by a majority vote determines in its good faith judgment that such Acquisition Proposal is reasonably capable of being completed (taking into account all legal, financial, regulatory and other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”aspects of the proposal and the person making the proposal); (E) take any action to exempt any Third Party from the restrictions on “business combinations” . Nothing contained in this Section 203 5.5 shall prohibit the Company or the Company's Board of Directors from taking and disclosing to the DGCL Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any other disclosure required by applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoinglaw.
Appears in 2 contracts
Sources: Merger Agreement (Harmonic Inc), Merger Agreement (C Cube Microsystems Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement hereof until the earlier of the Effective Time or the earlier termination of this Agreement in accordance with Section 8.01Agreement, the Company shall not, directly or indirectly, through any officer, director, employee, representative or agent of the Company or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, the "Company Representatives"), and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its commercially reasonable best efforts to cause the other Representatives of each Acquired Company Representatives, not to, directly or indirectly: , (Ai) initiate, solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public or facilitate inquiries or proposals with respect to, or participate in negotiations concerning, or provide any confidential information or data to, or have any substantive discussions with, any third party relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could would reasonably be expected to lead to, an any Acquisition Proposal (except to notify such person as to the existence of the provisions of this Section 6.06), or (ii) enter into any merger agreement, acquisition agreement, letter of intent or similar document providing for or otherwise relating to any Acquisition Proposal; provided, (B) enter intothat notwithstanding anything in this Agreement to the contrary, continue the Company may, directly or otherwise indirectly through any of the Company Representatives, furnish information and data to, and participate in any discussions or negotiations with, or furnish any non-public information relating person that has made a bona fide written Acquisition Proposal if, and only to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposalextent that, (CI) grant any waiver, amendment or release (A) such Acquisition Proposal is at a price higher than the Per Share Consideration and the Company's Board believes in good faith that there is a substantial likelihood that the consummation of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding such Acquisition Proposal is probable and (B) after the foregoingreceipt of advice from outside legal counsel, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and outside legal advisors, faith that the failure to take such action would be inconsistent with its fiduciary duties obligations to the Company's shareholders under Applicable Lawapplicable law, (DII) approvethe Company shall not have violated any of the provisions of this Section 6.06(a), endorseand (III) prior to taking such action, recommend the Company receives from such person an executed confidentiality agreement on terms with respect to confidentiality, standstill obligations relating to the purchase or offer to purchase any equity securities of the Company and non-solicitation of the Company's employees on substantially similar terms to the Confidentiality Agreement; provided, that, notwithstanding anything herein to the contrary, the Company and its Representatives may take, and shall not be prohibited or otherwise limited by the terms of such confidentiality agreement in taking, any action that is otherwise contemplated by this Section 6.06, including the waiver by the Company of the standstill provision to permit discussions and negotiations, the entering into of a definitive agreement and any other actions in the furtherance thereof with respect to such Acquisition Proposal.
(b) Notwithstanding anything herein to the contrary, in the event of any bona fide written Acquisition Proposal that has not been withdrawn, (i) the Company Board may approve or recommend, and the Company may enter intointo a definitive agreement providing for, an Acquisition Proposal that is submitted to the Company prior to the Shareholders' Meeting, and (ii) the Company Board may withdraw or modify in any manner adverse to Parent the Company Board Recommendation (a "Company Board Change of Recommendation"), if (I) the Company shall not have violated any of the provisions of Section 6.06(a), (II) the Company provides Parent with written notice at least three Business Days prior to any meeting of the Company Board at which the Company Board will take any such action, during which three-business day period Parent may propose revisions to the terms of this Agreement, (III) notwithstanding such revisions proposed by Parent pursuant to clause (II) above, the Company Board makes the determination that such Acquisition Proposal constitutes a Superior Proposal, (IV) after the receipt of advice from outside legal counsel, the Company Board determines in good faith that the failure to take such action would be inconsistent with its fiduciary obligations to the Company's shareholders under applicable law.
(c) The Company shall promptly (and in any event within 24 hours of receipt thereof) notify Parent after receipt of any Acquisition Proposal (which notice shall identify the person making such Acquisition Proposal and set forth the material terms thereof), any material modification of or material amendment to any Acquisition Proposal (including the material terms thereof), or publicly propose any request for non-public information relating to approve, endorse, recommend the Company by any person that has notified the Company of its intention to make any Acquisition Proposal and the terms and conditions of such request.
(d) The Company shall immediately cease and cause to be terminated any existing discussions or enter into, negotiations with any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or persons (other Contract than Parent) conducted heretofore with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement of the foregoing. The Company shall immediately request each person who has heretofore executed a confidentiality agreement in connection with its consideration of acquiring Company or any portion thereof to return or destroy in accordance with Section 6.02(cthe terms of such confidentiality agreement all confidential information heretofore furnished to such person by or on behalf of Company.
(e) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” Nothing contained in Section 203 this Agreement shall prohibit the Company or the Company Board from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's shareholders if, in the good faith judgment of the DGCL Company Board, after consultation with outside counsel, failure to take such action would be inconsistent with applicable law.
(f) Nothing in this Agreement shall prohibit or any other applicable Takeover Statute or otherwise cause restrict the Company Board from making a Company Board Change of Recommendation to the extent that the Company Board determines in good faith, following consultation with outside legal counsel, that failure to take such restrictions not to apply or (F) resolve, agree, authorize or commit to do any action would constitute a breach of the foregoingCompany Board's fiduciary obligations under applicable law.
Appears in 2 contracts
Sources: Merger Agreement (Stewart & Stevenson Services Inc), Merger Agreement (Armor Holdings Inc)
No Solicitation. (a) Except as permitted by this provided in Section 6.025.3(b) below, during the period Company, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01or the Effective Time, will not nor shall it authorize or permit its officers, directors, employees, investment bankers, attorneys, accountants and other agents to (and, at the Company shall further request of Parent, will use reasonable efforts to ensure that such persons do not, and shall ) directly or indirectly (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek solicit or knowingly encourage (including by way of furnishing non-public information relating encourage, or knowingly take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (Bii) enter intointo any agreement with respect to any Acquisition Proposal, continue or otherwise participate (iii) in any the event of an unsolicited Acquisition Proposal for the Company engage in negotiations or discussions or negotiations with, or furnish provide any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies data to, any Third PartyPerson (other than Parent, any of its affiliates or representatives) relating to 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 Board of Directors from (i) taking and disclosing to the Company's shareholders its position with respect to tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, (ii) making such disclosure to the Company's shareholders as, in each casethe good faith judgment of the Board of Directors, after receipt of advice from outside legal counsel to the Company is necessary for the Company Board of Directors to comply with respect to, its fiduciary duties to the Company's shareholders under applicable law or that could reasonably be expected (iii) otherwise complying with their fiduciary duties to lead to, an Acquisition Proposal, shareholders.
(Cb) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company shall be permitted may furnish information concerning its business, properties or assets to grant any Person pursuant to a waiver of or terminate any “standstill” or similar confidentiality agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made with terms no less favorable to the Company Board or than those contained in the Special Committee if Confidentiality Agreement, dated January 14, 1998 entered into between Parent and the Company (the "Confidentiality Agreement") and may negotiate and ------------------------- participate in discussions and negotiations with such Person concerning an Acquisition Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board (acting upon the recommendation of the Special Committee) has determined Directors deter- mines in good faith, after consultation with its outside financial receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger which is not conditioned upon obtaining additional financing the certainty of closing of which is less certain than the satisfaction of condition set forth in paragraph (h) of Annex I and in Section 1.1(a) on conditions less favorable to the Company than the Financing and (y) in the opinion of the Company Board of Directors, only after receipt of advice from outside legal advisorscounsel to the Company, that the failure to take provide such action information or access or to engage in such discussions or negotiations would be inconsistent with cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under Applicable Lawapplicable 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 one business day 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, (Dii) approve, endorse, approve or recommend or enter into, or publicly propose to approve, endorse, recommend approve or enter intorecommend, any letter of intent, memorandum of understanding, Acquisition Proposal or (iii) enter into any agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 Offer, the Board of Directors of the DGCL Company may (subject to the terms of this and the following sentence) withdraw or any other applicable Takeover Statute modify its approval or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any recommendation of the foregoingOffer, this Agreement or the Merger, approve or recommend a Superior Proposal, or enter into an agreement with respect to a Superior Proposal, in each case at any time after the fifth business day following the Company's delivery to Parent of written notice advising Parent that the Board of Directors has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal; provided that the Company shall not enter into an agreement with respect to a Superior Proposal unless the Company also shall have furnished Parent with written notice that it intends to enter into such agreement.
Appears in 2 contracts
Sources: Merger Agreement (Rose Acquisition Corp), Merger Agreement (State of the Art Inc /Ca)
No Solicitation. Except as permitted by this Section 6.02, during (a) During the period from beginning on the date of this Agreement and continuing until 11:59 p.m. (New York time) on the earlier date that is forty-five (45) days after the date of the Effective Time or the termination public announcement of this Agreement in accordance with Section 8.01(the “Solicitation Period End Date”), the Company, the Company Subsidiaries and the Company Representatives shall notbe permitted to, and shall (i) cause its Subsidiaries and have the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not right to, directly or indirectly: indirectly (Aacting under the direction of the Company Board) (i) solicit, initiateinitiate or encourage any Acquisition Proposal (or inquiries, seek proposals or knowingly encourage offers or other efforts that may lead to an Acquisition Proposal) and (including by way of furnishing non-public information relating ii), subject to compliance with Sections 5.4(d), (e) and (f), participate in discussions or negotiations regarding, and furnish to any Acquired Company) person information with respect to, and take any inquiry, discussion, offer other action to facilitate any inquiries or request the making of any proposal that constitutes, or could would reasonably be expected to lead to, an Acquisition Proposal; provided, however, that the Company shall not, and shall not authorize or permit any of the Company Subsidiaries or any Company Representatives to, provide to any third party any material non-public information unless the Company receives from such third party an executed confidentiality agreement with confidentiality provisions (including customary standstill and non-solicitation provisions for such a transaction) no more favorable to such person than those confidentiality provisions contained in the Confidentiality Agreement, provided, that, the Company shall promptly provide to Parent any material non-public information concerning the Company or the Company Subsidiaries that is provided to any person given such access but which was not previously provided to Parent and its Representatives. Parent agrees that, during the period from the date hereof to and the end of the Solicitation Period End Date, neither it nor any affiliate or Parent Subsidiary shall, and that it shall use its reasonable best efforts to cause the Parent Representatives not to, directly or indirectly, contact, knowingly discourage, knowingly interfere with or participate in discussions with, any person that, to Parent’s knowledge, has made, or is considering or participating in discussions or negotiations with the Company, the Company Subsidiaries or the Company Representatives regarding, an Acquisition Proposal.
(b) As of the Solicitation Period End Date and continuously thereafter, the Company shall, and shall cause the Company Subsidiaries to, and shall direct the Company Representatives to, (A) immediately cease any solicitation, encouragement, discussions or negotiations with any parties that may be ongoing with respect to any Acquisition Proposal, (B) enter intorequest the prompt return or destruction of all confidential information previously furnished to any Person in respect an Acquisition Proposal and (C) not terminate, continue waive, amend, release or otherwise modify any provision of any confidentiality or standstill agreement to which it or any of its affiliates or Representatives is a party with respect to any Acquisition Proposal, and shall enforce the provisions of any such agreement and (ii) during the period beginning on the Solicitation Period End Date and continuing until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause the Company Representatives not to, directly or indirectly, (A) solicit, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing information), or knowingly take any other action designed or reasonably likely to facilitate or encourage, any inquiry with respect to, or the making, submission or announcement of, any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (B) participate in any discussions or negotiations with(including by way of furnishing information) regarding an Acquisition Proposal, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or its properties, books, records or officers of the Acquired Companies personnel to, any Third Partyperson that has made or, in each caseto the Company’s knowledge, with respect to, or that could reasonably be expected to lead to, is considering making an Acquisition Proposal, (C) grant make a Change of Recommendation, (D) enter into any waiverletter of intent or agreement in principle or any agreement providing for any Acquisition Proposal (except for confidentiality agreements permitted under Section 5.4(c)) or (E) resolve, amendment propose or release agree to any of the foregoing. The Company shall promptly inform the Company Representatives, and shall cause the Company Subsidiaries promptly to inform their respective Representatives, of the obligations under this Section 5.4(b).
(c) Notwithstanding the limitations set forth in Section 5.4(b), at any Third Party under any standstill or confidentiality agreement; time from the Solicitation Period End Date and continuing until the earlier of the Acceptance Date and the termination of this Agreement pursuant to Section 7.1 below, provided that notwithstanding the foregoing, the Company shall be permitted to grant has complied in all material respect with its obligations under this Section 5.4, if the Company receives an unsolicited bona fide written Acquisition Proposal (i) which (A) constitutes a waiver of Superior Proposal or terminate any “standstill” (B) which the Special Committee or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if determines in good faith could reasonably be expected to result in a Superior Proposal and (ii) the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and outside the Company’s legal advisors, counsel that the failure of the Company Board to take the actions set forth in clauses (x) and (y) below with respect to such action Acquisition Proposal would be inconsistent with its the directors’ exercise of their fiduciary duties obligations to the Company’s stockholders under Applicable applicable Law, then the Company may take the following actions: (Dx) furnish non-public information to the third party making such Acquisition Proposal (if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement with confidentiality provisions (including customary standstill and non-solicitation provisions for such a transaction) no more favorable to such person than those confidentiality provisions contained in the Confidentiality Agreement) and (y) engage in discussions or negotiations with such third party with respect to such Acquisition Proposal.
(d) The Company shall promptly (and in any event no later than twenty-four (24) hours) notify Parent if the Company, the Company Subsidiaries or its or their Representatives receives (i) any Acquisition Proposal or (ii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, including during the period from the date of this Agreement to the Solicitation Period End Date. The Company shall notify Parent promptly (and in any event no later than twenty-four (24) hours) of the identity of such Person and provide a copy of such Acquisition Proposal, inquiry or request (or, where no such copy is available, a written description of such Acquisition Proposal, inquiry or request), including any material modifications thereto. The Company shall keep Parent reasonably informed on a current basis (and in any event no later than twenty-four (24) hours) after the occurrence of any changes or developments of the status of any Acquisition Proposal, inquiry or request (including the material terms and conditions thereof and of any material modification thereto) and shall provide to Parent as soon as practicable (and in any event no later than twenty-four (24) hours) after receipt or delivery thereof, with copies of all draft agreement (and any other written material) sent by or provided to the Company or any Company Subsidiary (or their Representatives) in connection with any such Acquisition Proposal. Without limiting the foregoing, the Company shall promptly (within twenty-four (24) hours) notify Parent if it determines to begin providing or making available information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.4(c). The Company agrees that it will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing any such information to Parent.
(e) Other than in accordance with this Section 5.4(e), the Company Board shall not (i) change, qualify, withdraw or modify, or propose publicly to change, qualify, withdraw or modify in a manner adverse to Parent, the Company Board Recommendation, (ii) approve, endorse, recommend adopt or enter intorecommend, or propose publicly propose to approve, endorseadopt or recommend, recommend any Acquisition Proposal, (iii) make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer, (iv) exempt any person from the restrictions contained in any state takeover or similar Laws, including Section 203 of the DGCL (each of the foregoing, a “Change of Recommendation”) or (v) enter into, into or authorize the Company to enter into any letter of intent, memorandum of understandingmerger, acquisition, or similar agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality any confidentiality agreement to be entered into by the Company as contemplated by this Section 5.4 (each a “Company Acquisition Agreement”); provided, however, that, in response to the receipt of a Superior Proposal that has not been withdrawn or abandoned, the Company Board may, at any time prior to the Acceptance Date, make either (x) a Change of Recommendation if the Company Board has concluded in good faith that the failure of the Company Board to effect a Change of Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the stockholders of the Company under applicable Law and/or (y) terminate this Agreement in accordance with Section 6.02(c) 7.1 to enter into a Company Acquisition Agreement with respect to such Superior Proposal (an a “Alternative Acquisition AgreementSuperior Termination”); provided, further, that, the Company Board may not effect such Change of Recommendation or a Superior Termination, in each case in connection with a Superior Proposal, unless both of the following conditions have been met:
(E1) take the Company shall have provided prior written notice to Parent, at least forty-eight (48) hours or such greater time as necessary to include at least one (1) entire Business Day (ending at midnight) (the “Notice Period”) in advance, of its intention to effect a Change of Recommendation and/or Superior Termination in response to such Superior Proposal, which notice shall in addition specify the material terms and conditions (including price) of any action such Superior Proposal (including the identity of the Person or group of Persons making the Superior Proposal), and contemporaneously with providing such notice shall have provided a copy of the relevant proposed acquisition agreement and other material documents related thereto with the party making such Superior Proposal; and
(2) prior to exempt effecting such Change of Recommendation and/or Superior Termination in response to a Superior Proposal, the Company shall, and shall cause its legal and financial advisors to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal.
(f) If during the Notice Period any Third Party material revisions are made to the Superior Proposal to which the final proviso of Section 5.4(e) applies (including any change in the purchase price in such Superior Proposal), the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of such proviso with respect to such new written notice.
(g) Nothing in this Agreement shall prohibit or restrict the Company Board from making a Change of Recommendation to the restrictions on “business combinations” extent that the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to effect a Change of Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the stockholders of the Company under applicable Law.
(h) Nothing contained in Section 203 this Agreement shall prohibit the Company or the Company Board from disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided, however, that neither the Company nor the Company Board shall be permitted to recommend an Acquisition Proposal which is not a Superior Proposal; provided, further, that any disclosure other than “stop, look and listen” or similar communication of the DGCL type contemplated by Rule 14d-9(f) under the Exchange Act, an express rejection of an Acquisition Proposal or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any an express reaffirmation of the foregoingCompany Board Recommendation in favor of the Offer and the Merger shall be deemed to be a Change of Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Gentek Inc), Merger Agreement (ASP GT Holding Corp.)
No Solicitation. Except (a) The Company shall, and shall cause its Subsidiaries, officers, directors, employees, counsel, investment bankers, financial advisers, accountants, other representatives and agents (collectively, the "Company Representatives") to immediately as permitted by this Section 6.02, during the period from of the date of this Agreement until the earlier of the Effective Time hereof cease any discussions or the termination of this Agreement in accordance negotiations with Section 8.01, the any parties that may be ongoing with respect to a Takeover Proposal. The Company shall not, and shall not authorize or permit any Company Representative to (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating information), or take any other action to facilitate, any Acquired Company) inquiries or the making of any inquiry, discussion, offer or request that proposal which constitutes, or could may reasonably be expected to lead to, an Acquisition any Takeover Proposal, (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Takeover Proposal (other than to respond to an inquiry by informing the inquiring party of the restrictions imposed by this Section 5.5) or (iii) enter into any agreement with respect to any Takeover Proposal; provided, however, that, if at any time prior to the Effective Time, the Board of Directors of the Company or the Special Committee determines in good faith, based on the advice of its legal counsel as to legal matters, that it is necessary to do so in order to comply with its fiduciary duties to the Company's shareholders under applicable law, the Company or the Special Committee may, in response to a Takeover Proposal, and subject to compliance with Section 5.5(c), (x) furnish information with respect to the Company to any person pursuant to a confidentiality agreement in connection therewith and (y) participate in negotiations regarding such Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any Company Representative shall be deemed to be a breach of this Section 5.5(a) by the Company.
(b) Neither the Board of Directors of the Company nor the Special Committee shall (i) withdraw or modify, or furnish propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or such Special Committee of this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any non-public information relating Takeover Proposal or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding anything in this Agreement to the Acquired Companies tocontrary, or afford access in the event that prior to the books or records or officers Effective Time the Board of Directors of the Acquired Companies toCompany or the Special Committee determines in good faith, any Third Partybased on the advice of its legal counsel as to legal matters, that it is necessary to do so in order to comply with its fiduciary duties to the Company's shareholders under applicable law, the Board of Directors of the Company or the Special Committee may withdraw or modify its approval or recommendation of this Agreement and the Merger, approve or recommend a Superior Proposal or cause the Company to enter into an agreement with respect to a Superior Proposal, but in each case, with respect to, or case only at a time that could reasonably be expected to lead to, an Acquisition is after the first business day following Parent's receipt of written notice (a "Notice of Superior Proposal") advising Parent that the Board of Directors of the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal.
(Cc) grant any waiver, amendment or release In addition to the obligations of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingCompany set forth in paragraphs (a) and (b) of this Section 5.5, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation immediately advise Parent orally and in writing of any Third Party to the extent such agreement or obligation prohibits request for information in connection with a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter intopotential Takeover Proposal, or publicly propose to approveof any Takeover Proposal, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract inquiry with respect to or which reasonably could lead to any Acquisition Takeover Proposal, the material terms and conditions of such request, Takeover Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from or inquiry and the restrictions on “business combinations” contained in Section 203 identity of the DGCL person making such request, Takeover Proposal or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoinginquiry.
Appears in 2 contracts
Sources: Merger Agreement (Foamex Capital Corp), Merger Agreement (Trace International Holdings Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company KNBT shall not, and nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to:
(ia) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not toinitiate, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes any Acquisition Proposal;
(b) enter into or maintain or continue discussions or negotiate with any person in furtherance of an Acquisition Proposal; or
(c) agree to or endorse any Acquisition Proposal; provided, however, that notwithstanding anything to the contrary contained in this Agreement:
(i) KNBT may furnish or cause to be furnished confidential and non-public information relating concerning KNBT and its businesses, properties or assets to any Acquired Companya third party;
(ii) any inquiry, discussion, offer KNBT may engage in discussions or request that constitutes, or could reasonably be expected to lead to, negotiations with a third party;
(iii) following receipt of an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating KNBT may take and disclose to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, its shareholders a position with respect to, or that could reasonably be expected to lead to, such Acquisition Proposal; and/or
(iv) following receipt of an Acquisition Proposal, the KNBT Board of Directors may withdraw or modify its recommendation of with respect to this Agreement; but in respect of the foregoing clauses (Ci) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee through (iv) only if the Company KNBT Board (acting upon the recommendation of the Special Committee) has determined Directors shall conclude in good faithfaith after consultation with its legal and financial advisors, that failure to do so would result in a breach by such directors of their fiduciary duties. KNBT shall (unless it believes, after consultation with its outside financial and outside legal advisorscounsel, that failure to take such action notification would be inconsistent with its violate the KNBT Board of Directors’ fiduciary duties under Applicable Lawduties) notify NPB as promptly as practicable, (D) approvein reasonable detail, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect as to any inquiries and proposals relating to an Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL which it or any other applicable Takeover Statute of its representatives or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingagents may receive.
Appears in 2 contracts
Sources: Merger Agreement (KNBT Bancorp Inc), Merger Agreement (National Penn Bancshares Inc)
No Solicitation. Except Until the earlier to occur of such date and time as permitted (such date, the “Termination Date”)
(i) the Merger becomes effective,
(ii) the Merger Agreement shall have been validly terminated by this Parent,
(iii) the Merger Agreement and the Merger shall have been submitted to the stockholders of the Company at a duly convened meeting of the stockholders for the purpose of approving the Merger Agreement and the Merger and the required approval of the stockholders of the Company contemplated by the Merger Agreement shall not have been obtained by reason of the failure to obtain the required vote at such meeting or at any adjournment thereof,
(iv) the Merger Agreement shall have been validly terminated by the Company pursuant to Sections 7.1(a), (c) or (f) of the Merger Agreement,
(v) the Merger Agreement shall have been validly terminated by the Company pursuant to Section 6.027.1(i) and Parent shall have not required the Company to submit the Merger Agreement to the stockholders of the Company pursuant to Section 5.2 of the Merger Agreement, during the period from the date of and
(vi) this Agreement until the earlier of the Effective Time or the termination of this Agreement shall have been terminated prior to Completion in accordance with Section 8.017(b), the Company Seller agrees that it shall not, and that, subject to Section 6 hereof, it shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its all reasonable best efforts to cause the other Representatives Seller's employees, agents and representatives (including any investment banker, attorney or accountant retained by Seller) not to (and shall not authorize or permit any of each Acquired Company not them to), directly or indirectly: (Ai) solicit, initiate, seek solicit or initiate or knowingly encourage encourage, facilitate or induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (including by way of furnishing non-public information relating ii) participate or engage in any discussions or negotiations regarding, or furnish to any Acquired Company) Person any inquiry, discussion, offer or request that constitutesnonpublic information with respect to, or could take any other action to knowingly encourage or facilitate any inquiries or the making of any proposal that constitutes or would reasonably be expected to lead to, an any Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (Diii) approve, endorse, recommend or make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal, (iv) execute or enter into, or publicly propose to approve, endorse, recommend execute or enter into, any letter of intent, memorandum of understandingintent or similar document or any contract, agreement in principle, acquisition agreement, merger agreement or other Contract with respect commitment contemplating or otherwise relating to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingtransaction contemplated thereby.
Appears in 2 contracts
Sources: Share Purchase Agreement (Cap Gemini Sa), Share Purchase Agreement (Cap Gemini Sa)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and shall ---------------- not authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, "Representatives") of, the Company to, (i) cause its Subsidiaries and directly or indirectly solicit, ---------------- initiate or encourage the respective directors and officers of each Acquired submission of, any Company and Takeover Proposal (as defined in Section 5.02(e)), (ii) instruct and use its reasonable best efforts except in connection with a termination of this Agreement pursuant to cause the other Representatives of each Acquired Section 8.01(e), enter into any agreement with respect to any Company not Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, directly or indirectly: (A) solicit, initiate, seek take any other action designed to facilitate any inquiries or knowingly encourage (including by way the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition any Company Takeover Proposal; provided, -------- however, that prior to the acceptance for payment of shares of Company Common ------- Stock pursuant to the Offer the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by it after consultation with outside counsel, in response to a bona fide, written Company Takeover Proposal made or received after the date of this Agreement that was not solicited by the Company in breach or deemed breach of this Section 5.02(a) and that did not otherwise result from a breach or deemed breach of this Section 5.02(a) and that the Company Board determines in good faith is reasonably likely to result in a Superior Company Proposal (as defined in Section 5.02(e)) within a reasonable period of time, and subject to compliance with Section 5.02(c), (Bx) enter into, continue or otherwise furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement (as defined in Section 6.02) and (y) participate in any discussions or negotiations with, or furnish (including solicitation of a revised Company Takeover Proposal) with such person and its Representatives regarding any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Company Takeover Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding . Without limiting the foregoing, the Company shall be permitted to grant a waiver of or terminate it is agreed that any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation violation of the Special Committee) has determined restrictions set forth in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.preceding
Appears in 2 contracts
Sources: Merger Agreement (Diatide Inc), Merger Agreement (Schering Berlin Inc)
No Solicitation. Except as Subject to Section 5(a) hereof, Shareholder shall immediately cease, and shall cause the Liberty Controlled Affiliates and its and their respective Representatives acting at the direction of Shareholder or such Liberty Controlled Affiliates to immediately cease, any discussions or negotiations with any third-party that may be ongoing with respect to a proposal relating to an ILG Alternative Transaction (a “Competing Proposal”) (for purposes of this Agreement, excluding any Transfer permitted by this Section 6.021(b) above), during the period or any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly any confidential information that has been provided since January 2017 in any such discussions or negotiations. Subject to Section 5(a) hereof, from the date of this Agreement hereof until the earlier of the Final Holdco Merger Effective Time or the date of termination of this Agreement in accordance with Section 8.01its terms, the Company Shareholder shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Liberty Controlled Affiliates and its and their respective Representatives acting at the direction of each Acquired Company Shareholder or such Liberty Controlled Affiliates not to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Companywhich has not been previously publicly disseminated) any inquiry, discussion, offer Competing Proposal or request that constitutes, or could any proposal which would reasonably be expected to lead to, an Acquisition to a Competing Proposal, (Bii) enter into, continue or otherwise participate engage in any discussions or negotiations with, regarding any Competing Proposal or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (Diii) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract similar definitive agreement with respect to any Acquisition Competing Proposal. Shareholder shall promptly, and in any event no later than 24 hours, after it receives (x) any Competing Proposal or indication by any person that it is considering making a Competing Proposal, (y) any request for non-public information relating to ILG or its subsidiaries other than an Acceptable Confidentiality Agreement requests for information in accordance the ordinary course of business consistent with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action past practice and unrelated to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply a Competing Proposal or (Fz) resolveany inquiry or request for discussions or negotiations regarding any Competing Proposal, agree, authorize or commit to do notify ILG and MVW orally and in writing of any of the foregoingforegoing occurrences, the identity of the person making such request, inquiry or Competing Proposal and a copy of such request, inquiry or Competing Proposal (or where no such copy is available, a reasonably detailed description of such request, inquiry or Competing Proposal), including any modifications thereto. For the avoidance of doubt, notwithstanding anything to the contrary in this Section 1(c), this Section 1(c) shall not prohibit any discussions, negotiations, or Transfers related to any permitted Transfers pursuant to Section 1(b), and any Transfer permitted under Section 1(b) will not constitute a breach of this Section 1(c).
Appears in 2 contracts
Sources: Voting and Support Agreement (MARRIOTT VACATIONS WORLDWIDE Corp), Voting and Support Agreement (Qurate Retail, Inc.)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and shall (i) cause its each of the Company Subsidiaries and the its and their respective directors officers, directors, employees, agents, investment bankers, financial advisors, attorneys, accountants and officers of each Acquired Company and other retained representatives (iieach, a “Representative”) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly (Ai) solicit, initiate, seek encourage or knowingly encourage facilitate (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesinformation), or could reasonably be expected take any other action designed to lead tofacilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including, by way of a tender offer) or similar transactions involving the Company or any of the Company Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”), (Bii) enter into, continue or otherwise participate in any discussions or negotiations regarding an Alternative Transaction or Acquisition Proposal or (iii) enter into any agreement regarding any Alternative Transaction or Acquisition Proposal; provided, however, that, in the event that (x) the Company shall receive a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Agreement, (y) prior to receipt of the Company Shareholder Approval, the Company Board determines in its good faith judgment, after receiving the advice of outside counsel, that, in light of such Superior Proposal, if the Company fails to participate in such discussions or negotiations with, or provide such information to, the party making the Superior Proposal, the Company Board would be in violation of its fiduciary duties under applicable Law, and (z) the Company has given HEOP at least five (5) Business Days’ notice of its intention to do so, the Company may (A) furnish information with respect to it and the Company Subsidiaries to the party making such Superior Proposal pursuant to a customary confidentiality agreement containing terms no less restrictive to the party making the Superior Proposal than the terms contained in the Confidentiality Agreement; provided that a copy of all such written information is simultaneously provided to HEOP, and (B) participate in discussions regarding such Superior Proposal.
(b) The Company shall notify HEOP promptly (but in no event later than one Business Day) after receipt of any Acquisition Proposal or any material modification of or material amendment to any Acquisition Proposal, or any request for non-public information relating to the Acquired Companies toCompany or any of the Company Subsidiaries or for access to the properties, books or records of the Company or any of the Company Subsidiaries by any Person that has made, or afford to the Company’s Knowledge may be considering making, an Acquisition Proposal. Such notice to HEOP shall be made orally and in writing, and shall indicate the identity of the Person making the Acquisition Proposal or intending to make or considering making an Acquisition Proposal or requesting non-public information or access to the books or and records or officers of the Acquired Companies toCompany or any of the Company Subsidiaries, and the terms of any Third Party, in each case, with respect to, such Acquisition Proposal or that could reasonably be expected modification or amendment to lead to, an Acquisition Proposal. The Company shall keep HEOP fully informed, (C) grant any waiveron a current basis, amendment or release of any Third Party under changes in the status and any standstill changes or confidentiality agreement; provided that notwithstanding modifications in the foregoingterms of any such Acquisition Proposal, indication or request.
(c) The Company and the Company Subsidiaries shall immediately cease and cause to be permitted to grant a waiver of terminated any existing discussions or terminate negotiations with any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board Persons (acting upon the recommendation of the Special Committeeother than HEOP) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract conducted heretofore with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing. The Company agrees not to, and to cause the Company Subsidiaries not to, release any third party from, and agrees to enforce, the confidentiality and standstill provisions of any agreement to which the Company or the Company Subsidiaries is a party that remains in effect as of the date hereof, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any person to make an Acquisition Proposal.
(d) Nothing contained in this Agreement shall prohibit the Company Board from disclosing to its shareholders a position contemplated by Rules 14d-9 and 14e-2(a)(2)-(3) under the Exchange Act; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement; and provided, further, that any such disclosure (other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a modification of the Company Board Recommendation in a manner adverse to HEOP unless the Company Board expressly and concurrently reaffirms the Company Board Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Mission Community Bancorp), Merger Agreement (Heritage Oaks Bancorp)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01Time, the Company Parent shall not, and nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any of its directors, officers, or employees, or any investment banker, financial advisor, attorney, accountant, or other representative retained by it or any of its subsidiaries (ithe "Representatives") cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly through another Person, (Ai) solicit, initiate, seek solicit or knowingly encourage initiate (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesinformation), or could reasonably be expected take any other action designed and intended to lead tofacilitate or encourage, an Acquisition Proposalany inquiries or the making of any proposal that constitutes any Takeover Proposal (as defined below), (Bii) enter into, continue participate or otherwise participate engage in any discussions or negotiations withregarding any Takeover Proposal, or furnish (iii) disclose any non-public nonpublic information relating to Parent or any of its subsidiaries to any Person in connection with any Takeover Proposal; provided, however, that in the Acquired Companies tocase of (ii) and (iii) only, or afford access if, at any time prior to obtaining the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingParent Stockholders' Approval, the Company shall be permitted to grant a waiver Board of or terminate any “standstill” or similar agreement or obligation Directors of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Parent determines in good faith, (i) after consultation consulting with its and receiving the advice of outside financial and outside legal advisorscounsel, that failure it is necessary to take such action would be inconsistent do so in order to comply with its fiduciary duties to Parent's stockholders under Applicable Lawapplicable law and (ii) based on the advice of Parent's financial advisors, that a Takeover Proposal is a Superior Proposal (as defined below), then Parent may, in response to a bona fide written Takeover Proposal that was not solicited by it, and subject to compliance with Section 6.13(c), (Dx) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract furnish information with respect to Parent and its subsidiaries to any Acquisition Proposal Person submitting such Takeover Proposal, provided such information is furnished pursuant to an existing confidentiality agreement or a confidentiality agreement with terms no less favorable to Parent than those contained in the Confidentiality Agreement (as hereinafter defined) (which agreement Parent is hereby permitted to enter into) and (y) participate in discussions or negotiations regarding such Takeover 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 15% or more of the assets of Parent and its subsidiaries or 15% or more of any class of equity securities of Parent 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 Parent or any of its subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution, or similar transaction involving Parent or any of its subsidiaries, in all cases other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition the transactions contemplated by this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Universal Compression Inc), Merger Agreement (Universal Compression Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall notshall, and shall (i) cause its Subsidiaries Subsidiaries, and the respective directors its and officers of each Acquired Company their officers, directors, employees, financial advisors, attorneys, accountants and other advisors, representatives and agents (iicollectively, "Representatives") instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating immediately cease and cause to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in terminated immediately any discussions or negotiations with, or furnish with any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, parties that may be ongoing with respect to, or that could reasonably be expected to lead to, an Acquisition a Takeover Proposal. The Company shall not, nor shall it authorize or permit any of its Representatives, to (i) directly or indirectly solicit, initiate, encourage, or take any other action to knowingly facilitate (including by way of furnishing information) any Takeover Proposal, (Cii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any negotiations or discussions regarding, or furnish or disclose to any Person (other than a party to this Agreement) any information with respect to, or take any other action to knowingly facilitate or in furtherance of any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal or (iv) grant any waiver, amendment waiver or release of any Third Party under any standstill or confidentiality agreementany similar agreement with respect to any class of the Company's equity securities; provided provided, however, at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide written Takeover Proposal that notwithstanding the foregoingBoard of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or would reasonably be expected to lead to a Superior Proposal, and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 6.2, the Company shall be permitted to grant a waiver may, if its Board of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors determines in good faith, faith (after consultation consulting with its outside financial and outside legal advisors, counsel) that failure it is required to take such action would be inconsistent do so in order to comply with its fiduciary duties to the stockholders of the Company under Applicable Lawapplicable law, and subject to compliance with Section 6.2(c), (Di) approvefurnish 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 not less restrictive of such Person than the Confidentiality Agreement and the standstill provisions of the Standstill Agreement, endorseprovided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person, recommend and (ii) participate in discussions or enter intonegotiations with the Person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.
(b) The Company shall provide Parent with 48 hours prior written notice (or such other prior notice as is reasonably practicable in light of notice of less than 48 hours provided to members of the Board of Directors) of any meeting of its Board of Directors at which its Board of Directors is reasonably expected to consider any Takeover Proposal.
(c) Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to Parent), or publicly propose to withdraw (or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, endorseor propose publicly to recommend, recommend adopt or approve, any Takeover Proposal (any action described in this clause (i) being referred to as a "Company Adverse Recommendation Change") or (ii) approve or recommend, or propose to approve or recommend, or allow 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, merger option agreement, joint venture agreement, partnership agreement or other Contract similar agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Takeover Proposal (other than a confidentiality agreement referred to in Section 6.2(a)) (an "Acquisition Agreement"). Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company may make a Company Adverse Recommendation Change in response to a Superior Proposal if such Board of Directors determines in good faith (after consultation with outside counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable law; provided, however, that (i) no Company Adverse Recommendation Change shall be made until after the third Business Day following Parent's receipt of written notice (a "Notice of Adverse Recommendation") from the Company advising Parent that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a new three Business Day period); (ii) during such three Business Day period the Company shall negotiate with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and not make a Company Adverse Recommendation Change and (iii) the Company shall not make a Company Adverse Recommendation Change if, prior to the expiration of such three Business Day period, Parent makes a proposal to adjust the terms and conditions of this Agreement that the Company's Board of Directors determines in good faith (after consultation with its financial advisors) to be at least as favorable as the Superior Proposal.
(d) The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 6.2, promptly on the date of receipt thereof, the Company shall advise Parent orally and in writing of any request for information that could reasonably be expected to lead to a Takeover Proposal, or any Takeover Proposal, or any inquiry, discussions or negotiations with respect to any Acquisition Takeover Proposal other than an Acceptable Confidentiality Agreement and the terms and conditions of such request, Takeover Proposal, inquiry, discussions or negotiations and the Company shall promptly provide to Parent copies of any written materials received by the Company in accordance connection with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing, and the identity of the Person or group making any such request, Takeover Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company agrees that it shall keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such request, Takeover Proposal or inquiry and keep Parent fully informed as to the 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, Takeover Proposal or inquiry.
(e) Nothing contained in this Section 6.2 shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if, in the good faith judgment of the Board of Directors (after consultation with outside counsel), such disclosure would be required under applicable law; provided, however, that in no event shall the Company or its Board of Directors or any committee thereof take, or agree or resolve to take, any action prohibited by 6.2(c).
(f) The Company agrees that immediately following the execution of this Agreement it shall request each Person which has heretofore executed a confidentiality agreement since July 24, 2000 in connection with such Person's consideration of acquiring the Company to return or destroy all confidential information heretofore furnished to such Person by or on its behalf.
Appears in 2 contracts
Sources: Merger Agreement (Lilly Eli & Co), Merger Agreement (Applied Molecular Evolution Inc)
No Solicitation. Except as permitted by this (a) Subject to Section 6.025.4(b), during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.015.4(d), Section 5.4(e) and Section 5.4(g), the Company shall not, and shall (i) cause its Subsidiaries and the their respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (Ai) solicit, initiate, seek solicit or knowingly encourage (including by way of furnishing providing non-public information relating to information) the submission of any Acquired Company) any inquiryinquiries, discussion, offer proposals or request offers that constitutes, constitute or could may reasonably be expected to lead to, an any Company Acquisition Proposal, (B) enter into, continue Proposal or otherwise participate engage in any discussions or negotiations withwith respect thereto (except to disclose the existence of the provisions of this Section 5.4) or otherwise cooperate with or assist or participate in, or furnish knowingly facilitate any non-public information such inquiries, offers, proposals, discussions or negotiations, (ii) approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Company Acquisition Proposal or enter into any letter of intent, agreement or agreement in principle requiring the Company (whether or not subject to conditions) to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, (iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation (individually or collectively a “Company Adverse Recommendation Change”), or (iv) take any action to exempt any Person (other than Parent and its Subsidiaries) from the restrictions contained in any Takeover Law or otherwise cause such restrictions not to apply. The Company shall immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Persons conducted theretofore by the Acquired Companies to, or afford access any of its Representatives with respect to the books any Company Acquisition Proposal. The Company shall promptly cause to be returned or records destroyed all confidential information provided by or officers on behalf of the Acquired Companies toto any such Person.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), if at any time following the date of this Agreement and prior to obtaining the Required Company Vote, (i) the Company has received a written, bona fide Company Acquisition Proposal from a Third Party that is not in violation of such Third Party, in each case, with respect to, or that could reasonably be expected ’s contractual obligations to lead to, an Acquisition Proposalthe Company, (Cii) grant any waiver, amendment such Company Acquisition Proposal did not result from a breach or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, violation by the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to Section 5.4(a), (iii) the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside the Company’s financial advisors and outside legal advisorscounsel, that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Superior Proposal, and (iv) after consultation with the Company’s outside counsel, the Company Board determines in good faith that the failure to take such action could reasonably be expected to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company and its Representatives may, subject to clauses (x) and (y) below, (A) furnish information with respect to the Acquired Companies to the Person making such Company Acquisition Proposal (and its Representatives), and (B) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and its Representatives) regarding such Company Acquisition Proposal; provided that (x) the Company will not, and will cause its Representatives not to, disclose any non-public information to such Person unless the Company has, or first enters into, a customary confidentiality agreement with such Person with terms no less favorable in all material respects to the Company than those contained in the Confidentiality Agreement and (y) the Company will promptly (and in any event within 24 hours) provide or make available to Parent or its Representatives any non-public information concerning the Acquired Companies provided or made available to such other Person which was not previously provided or made available to Parent or its Representatives.
(c) From and after the date hereof, the Company shall promptly (and in any event within 48 hours) notify Parent in the event that the Company (including through any of its Subsidiaries or Representatives) receives (i) any Company Acquisition Proposal, (ii) any request for non-public information which relates to, or could reasonably likely lead to, a Company Acquisition Proposal, or (iii) any request for discussions or negotiations regarding any Company Acquisition Proposal. The Company shall provide Parent promptly (and in any event within such 48 hour period) with the identity of such Person and a copy of such Company Acquisition Proposal or request (or, where such Company Acquisition Proposal or request is not in writing, a description of the material terms and conditions thereof). The Company shall keep Parent reasonably informed (orally or in writing) on a current basis (and in any event no later than 48 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Company Acquisition Proposal or request (including the material terms and conditions thereof and of any material modification thereto). The Company shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person subsequent to the date of this Agreement that would restrict Company’s ability to provide such information to Parent.
(d) Notwithstanding anything in Section 5.4(a) to the contrary, if (i) Company receives a written, bona fide Company Acquisition Proposal from a Third Party that is not in violation of such Third Party’s contractual obligations to Company, (ii) such Company Acquisition Proposal did not result from a breach or violation by the Company of Section 5.4(a), and (iii) the Company Board concludes in good faith, after consultation with outside counsel and financial advisors, after giving effect to all of the adjustments to the terms of this Agreement which may be inconsistent offered by Parent pursuant to clause (B) below, that such Company Acquisition Proposal constitutes a Company Superior Proposal, the Company Board may at any time prior to obtaining the Required Company Vote, if it determines in good faith, after consultation with the Company’s outside counsel, that the failure to take such action could reasonably be expected to be a breach of its fiduciary duties to the stockholders of Company under applicable Law, (1) effect a Company Adverse Recommendation Change and/or (2) terminate this Agreement pursuant to Section 7.1(h) and this Section 5.4(d), it being understood that such termination shall not be effective unless, concurrently with such termination, Company enters into a written definitive agreement for such Company Superior Proposal and Company pays to Parent the Company Termination Fee required to be paid under Section 7.3(c); provided, however, that the Company Board may not effect such a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(h) and this Section 5.4(d) unless (A) Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Company Notice Period”), of its intention to take such action with respect to such Company Superior Proposal, which notice shall specify the material terms and conditions of any such Company Superior Proposal (including the identity of the Third Party making such Company Superior Proposal) and, in the case of a proposed termination pursuant to Section 7.1(h), shall include a copy of the proposed definitive agreement to be entered into concurrently with and as a condition to such termination, (B) prior to taking such action, the Company shall, and shall direct its financial and legal advisors to, during such Company Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate in good faith) to make such adjustments in the terms and conditions of this Agreement so that such Company Acquisition Proposal ceases to constitute a Company Superior Proposal, and (C) following any negotiation described in the immediately preceding clause (B), the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside counsel, that such Company Acquisition Proposal continues to constitute a Company Superior Proposal. In the event of any revisions to the terms of a Company Superior Proposal that are material to such Company Superior Proposal after the start of the Company Notice Period, the Company shall be required to deliver a new written notice to Parent satisfying the requirements of clause (A) of the preceding sentence and to comply with the requirements of this Section 5.4(d) with respect to such new written notice, and the Company Notice Period shall be deemed to have re-commenced on the date of such new notice.
(e) Notwithstanding anything in Section 5.4(a) to the contrary, at any time prior to obtaining the Required Company Vote, the Company Board may effect a Company Adverse Recommendation Change, if the Company Board (i) determines in good faith, after consultation with the Company’s outside counsel, that the failure to make such Company Adverse Recommendation Change could reasonably be expected to be a breach of its fiduciary duties to the stockholders of Company under applicable Law, and (ii) determines in good faith that the reasons for making such Company Adverse Recommendation Change are the result of a Company Intervening Event; provided, however, that the Company Board may not effect such a Company Adverse Recommendation Change pursuant to this Section 5.4(e) unless (A) Company shall have provided prior written notice to Parent, at least three Business Days in advance, of its intention to make such Company Adverse Recommendation Change, which notice shall specify the material facts and information constituting the basis for such contemplated determination, and (B) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall direct its financial and legal advisors to, during such three Business Day period, negotiate with Parent in good faith (to the extent Parent desires to negotiate in good faith) to make such adjustments in the terms and conditions of this Agreement which would allow the Company Board not to make such Company Adverse Recommendation Change consistent with its fiduciary duties duties.
(f) The Company agrees that any violations of the restrictions set forth in this Section 5.4 by any of its or its Subsidiaries’ Representatives, including any violation by such a Representative of a direction given to such Representative pursuant to the first sentence of Section 5.4(a) shall be deemed to be a breach of this Agreement (including this Section 5.4) by the Company.
(g) Nothing contained in this Section 5.4 shall prohibit the Company Board from (x) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under Applicable the Exchange Act or (y) making any required disclosure to Company’s stockholders if in the good faith judgment of the Company Board, after consultation with Company’s outside counsel, failure to make such disclosure would reasonably be expected to violate its obligations under applicable Law, (D) approve, endorse, recommend ; provided that any public disclosure relating or enter into, or publicly propose in response to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any a Company Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c(A) (an a “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinationsstop, look and listen” contained in Section 203 or similar communication of the DGCL or type contemplated by Rule 14d-9(f) under the Exchange Act, (B) an express rejection of any other applicable Takeover Statute or otherwise cause such restrictions not to apply Company Acquisition Proposal, or (FC) resolve, agree, authorize or commit an express reaffirmation of its recommendation to do any its stockholders in favor of the foregoingMerger, shall be deemed to be a Company Adverse Recommendation Change for purposes of Section 7.1(g).
Appears in 2 contracts
Sources: Merger Agreement (Cameron International Corp), Merger Agreement (Natco Group Inc)
No Solicitation. (a) Except as expressly permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.015.3, the Company and its Subsidiaries shall not, and shall (i) cause the Company and its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and shall use its reasonable their best efforts to cause the other Representatives of each Acquired Company their respective representatives not to, directly or indirectly: (A) solicit, initiate, seek solicit or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, facilitate inquiries or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, proposals with respect to, or that could reasonably be expected to lead engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, an or have any discussions with, any person relating to, any Company Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding in the foregoingevent that, prior to the time that the Company’s shareholders’ approval of the Company shall be permitted to grant a waiver of or terminate any Shareholder Matters (the “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to Company Shareholder Approval”) is obtained but not after, (1) the Company receives, after the execution of this Agreement, an unsolicited bona fide Company Acquisition Proposal from a person other than Parent, and (2) the Company’s Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors concludes in good faithfaith (A) that, after consultation consulting with its financial advisor, such Acquisition Proposal constitutes a Company Superior Proposal or would reasonably be likely to result in a Company Superior Proposal and (B) that, after considering the advice of outside financial and outside legal advisorscounsel, that failure to take such action actions would be inconsistent with its fiduciary duties to the Company’s shareholders under Applicable applicable Law, the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Parent and the Company executed by the Company on October 2, 2013 and by Parent on October 3, 2013 (Dthe “Confidentiality Agreement”) and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person. The Company will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any persons other than Parent with respect to any Company Acquisition Proposal, (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Company Acquisition Proposal to which it or any of its Affiliates or representatives is a party and (C) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Company Acquisition Proposal.
(b) Neither the Company’s Board of Directors nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Parent) or refuse to make the Company Board Recommendation or (B) adopt, approve, endorserecommend, recommend endorse or enter intootherwise declare advisable the adoption of any Company Acquisition Proposal, or publicly propose (ii) cause or permit the Company or any of its Subsidiaries to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract agreement constituting or related to, or which is intended to or is reasonably likely to lead to, any Company Acquisition Proposal (other than a confidentiality agreement permitted by the terms of Section 5.3(a) of this Agreement). Notwithstanding the foregoing, prior to the date of the Company Shareholders Meeting, the Company’s Board of Directors may take any of the actions specified in items (i) and (ii) of the preceding sentence (a “Company Subsequent Determination”) after the fourth (4th) Business Day following Parent’s receipt of a written notice (the “Notice of Superior Proposal”) from the Company (A) advising that the Company’s Board of Directors has decided that a bona fide unsolicited written Company Acquisition Proposal that it received (that did not result from a breach of this Section 5.3 or from an action by a representative of the Company or its Subsidiaries that would have been such a breach if committed by the Company or its Subsidiaries) constitutes a Superior Proposal (it being understood that the Company shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its Affiliates that the Company proposes to accept), (B) specifying the material terms and conditions of, and the identity of the party making, such Superior Proposal, and (C) containing an unredacted copy of the relevant transaction agreements with the party making such Superior Proposal, if, but only if, (A) Parent does not make, after being provided with reasonable opportunity to negotiate with the Company, within three (3) Business Days of receipt of a Notice of Superior Proposal, a written offer that the Board of Directors of the Company determines, in good faith after consultation with its outside legal counsel and financial advisors, results in the applicable Company Acquisition Proposal no longer being a Superior Proposal and (B) the Company’s Board of Directors reasonably determines in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law and that such Company Acquisition Proposal is 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 all adjustments to the terms of this Agreement that are committed to in writing by Parent pursuant to this Section 5.3(b). Notwithstanding the foregoing, the changing, qualifying or modifying of the Company Board Recommendation or the making of a Company Subsequent Determination by the Company’s Board of Directors shall not change the approval of the Company’s Board of Directors for purposes of causing any takeover Laws (or comparable provisions of any certificate of incorporation, by-law or agreement) to be inapplicable to this Agreement, the Voting Agreements and the transactions contemplated hereby and thereby, including the Merger.
(c) Except as expressly permitted by this Section 5.3, Parent and its Subsidiaries shall not, and Parent and its Subsidiaries shall use their best efforts to cause their respective representatives not to, initiate, solicit or knowingly encourage or facilitate inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Parent Acquisition Proposal; provided that in the event that, prior to the time that Parent’s shareholders’ approval of Parent Shareholder Matters (the “Parent Shareholder Approval”) is obtained but not after, (1) Parent receives, after the execution of this Agreement, an unsolicited bona fide Parent Acquisition Proposal from a person other than Parent, and (2) Parent’s Board of Directors concludes in good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Parent Superior Proposal or would reasonably be likely to result in a Parent Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be inconsistent with its fiduciary duties to Parent’s shareholders under applicable Law, Parent may, and may permit its Subsidiaries and its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement and any non-public information provided to any person given access to nonpublic information shall have previously been provided to the Company or shall be provided to the Company prior to or concurrently with the time it is provided to such person. Parent will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any persons other than the Company with respect to any Parent Acquisition Proposal, (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Parent Acquisition Proposal to which it or any of its Affiliates or representatives is a party and (C) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Parent Acquisition Proposal.
(d) Neither the Parent’s Board of Directors nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to the Company) or refuse to make the Parent Board Recommendation or (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Parent Acquisition Proposal, or (ii) cause or permit Parent or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or which is intended to or is reasonably likely to lead to, any Parent Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with a confidentiality agreement permitted by the terms of Section 6.02(c5.3(c) (an “Alternative Acquisition of this Agreement”); (E) . Notwithstanding the foregoing, prior to the date of the Parent Shareholders Meeting, the Parent’s Board of Directors may take any of the actions specified in items (i) and (ii) of the preceding sentence (a “Parent Subsequent Determination”) after the fourth (4th) Business Day following the Company’s receipt of a written notice (the “Parent Notice of Superior Proposal”) from Parent (A) advising that the Parent’s Board of Directors has decided that a bona fide unsolicited written Parent Acquisition Proposal that it received (that did not result from a breach of this Section 5.3 or from an action by a representative of Parent or its Subsidiaries that would have been such a breach if committed by Parent or its Subsidiaries) constitutes a Superior Proposal (it being understood that Parent shall be required to exempt deliver a new Parent Notice of Superior Proposal in respect of any Third Party revised Superior Proposal from such third party or its Affiliates that Parent proposes to accept), (B) specifying the restrictions on “business combinations” material terms and conditions of, and the identity of the party making, such Superior Proposal, and (C) containing an unredacted copy of the relevant transaction agreements with the party making such Superior Proposal, if, but only if, (A) the Company does not make, after being provided with reasonable opportunity to negotiate with Parent, within three (3) Business Days of receipt of a Parent Notice of Superior Proposal, a written offer that the Board of Directors of Parent determines, in good faith after consultation with its outside legal counsel and financial advisors, results in the applicable Parent Acquisition Proposal no longer being a Superior Proposal and (B) and (B) the Parent’s Board of Directors reasonably determines in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be inconsistent with its fiduciary duties to Parent’s shareholders under applicable Law and that such Parent Acquisition Proposal is 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 all adjustments to the terms of this Agreement that are committed to in writing by the Company pursuant to this Section 5.3(d). Notwithstanding the foregoing, the changing, qualifying or modifying of the Parent Board Recommendation or the making of a Parent Subsequent Determination by the Parent’s Board of Directors shall not change the approval of the Parent’s Board of Directors for purposes of causing any takeover Laws (or comparable provisions of any certificate of incorporation, by-law or agreement) to be inapplicable to this Agreement, the Voting Agreements and the transactions contemplated hereby and thereby, including the Merger.
(e) Nothing contained in Section 203 this Agreement shall prevent the Company or the Company’s Board of Directors or Parent or the Parent’s Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act, or other disclosure requirements under applicable Law or NASDAQ rules, with respect to an Acquisition Proposal; provided that such rules will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement.
(f) In addition to the obligations of the DGCL Company set forth in Sections 5.3(a) and (b) of this Agreement, in the event that the Company or any other applicable Takeover Statute of its Subsidiaries or otherwise cause such restrictions not to apply any representative of the Company or its Subsidiaries receives (i) any Company Acquisition Proposal or (Fii) resolveany request for non-public information or to engage in negotiations that the Company’s Board of Directors believes is reasonably likely to lead to or that contemplates a Company Acquisition Proposal, agreethe Company promptly (and in any event within 48 hours of receipt) shall advise Parent in writing of the existence of the matters described in clause (i) or (ii), authorize together with the material terms and conditions of such Acquisition Proposal or commit to do request and the identity of the person making such Acquisition Proposal or request. The Company shall keep Parent reasonably well informed in all material respects of the status (including after the occurrence of any material amendment or modification) of any such Acquisition Proposal or request. Without limiting any of the foregoing, the Company shall promptly (and in any event within 48 hours) notify Parent in writing if it determines to begin providing non-public information or to engage in negotiations concerning a Company Acquisition Proposal pursuant to Sections 5.3(a) or (b) of this Agreement and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(g) In addition to the obligations of Parent set forth in Sections 5.3(c) and (d) of this Agreement, in the event that Parent or any of its Subsidiaries or any representative of Parent or its Subsidiaries receives (i) any Parent Acquisition Proposal or (ii) any request for non-public information or to engage in negotiations that the Parent’s Board of Directors believes is reasonably likely to lead to or that contemplates a Parent Acquisition Proposal, Parent promptly (and in any event within 48 hours of receipt) shall advise the Company in writing of the existence of the matters described in clause (i) or (ii), together with the material terms and conditions of such Acquisition Proposal or request and the identity of the person making such Acquisition Proposal or request. Parent shall keep the Company reasonably well informed in all material respects of the status (including after the occurrence of any material amendment or modification) of any such Acquisition Proposal or request. Without limiting any of the foregoing, Parent shall promptly (and in any event within 48 hours) notify the Company in writing if it determines to begin providing non-public information or to engage in negotiations concerning a Parent Acquisition Proposal pursuant to Sections 5.3(c) or (d) of this Agreement and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice
(h) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Center Bancorp Inc), Merger Agreement (ConnectOne Bancorp, Inc.)
No Solicitation. (a) Except as permitted by this provided in Section 6.026.6(b) below, during the period Company agrees that from the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01Agreement, the Company shall will not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) , through any officer, director, affiliate or agent of the Company, or otherwise, solicit, initiate, seek or knowingly encourage any proposals or offers from any person other than Parent or its affiliates (including a "third party") relating to any possible acquisition of the Company or any of its subsidiaries (whether by way of furnishing non-public information relating merger, purchase of capital stock, purchase of assets or otherwise) or engage in any sale of any equity interest in or substantial assets of the Company or any of its subsidiaries (other than pursuant to any Acquired Companythe exercise of options outstanding on the date hereof) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a third party (an Acquisition Proposal, (B) enter into, continue or otherwise "Alternative Acquisition"); nor will the Company participate in any discussions or negotiations withregarding, or furnish to any non-public person any information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or otherwise cooperate with, facilitate or encourage any effort or attempt by any person to do or seek, any Alternative Acquisition.
(b) Notwithstanding the foregoing, in the event that could (i) the Company shall receive a written proposal from a third party relating to an Alternative Acquisition (which proposal may or may not be subject to confirmatory due diligence), (ii) the Company shall have notified Parent in writing of its receipt of such proposal and (iii) the Board of Directors, upon the advice of independent counsel, reasonably be expected believes that the failure to lead to, do so would constitute a breach of its fiduciary duties (it being understood for this purpose that the failure to respond to an Acquisition ProposalAlternative which in the judgment of the Company's Board of Directors and its financial advisor is superior, (C) grant any waiverfrom a financial point of view, amendment or release to the Company's stockholders may be deemed to be a breach of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding such duty), then thereafter the foregoingCompany shall be entitled to negotiate and provide information to such third party. Notwithstanding the immediately preceding sentence, this Section 6.6 will not be violated and, without more, the Company shall be permitted to grant negotiate and provide information to any third party that provides a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to written proposal for an Alternative Acquisition if such written proposal indicates that the extent such agreement or obligation prohibits proposed Alternative Acquisition (i) is fully financed, (ii) provides for a confidential proposal being made purchase price which will be paid entirely in cash, for all outstanding Shares and at a price per Share greater than the price per Share set forth in Section 1.1 hereof and (iii) sets forth material terms which taken as a whole are no less favorable to the Company Board or than the Special Committee if terms set forth in this Agreement, and the Company shall have first notified the Parent in writing of its receipt of such proposal and the terms thereof. In addition, in the event that any such proposal, including the financing thereof, has been determined by the Board (acting of Directors of the Company based upon the recommendation 25 written opinion of the Special Committee) has determined in good faith, after consultation with its outside financial advisors to be on terms financially superior to the Company's stockholders as compared with the Offer and outside legal advisorsthe Merger (a "Bona Fide Offer"), that failure the Company may terminate this Agreement and accept such Bona Fide Offer upon the payment to take such action would be inconsistent with its fiduciary duties under Applicable LawParent of the fee provided in Section 6.4.
(c) Notwithstanding the provisions of the sixth paragraph of the Confidentiality Agreement (the "standstill provisions"), (Di) approve, endorse, recommend or enter into, or publicly propose following any notification to approve, endorse, recommend or enter into, any letter Parent of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract a written proposal that permits the Company to negotiate with respect and furnish information to any Acquisition Proposal other than an Acceptable Confidentiality Agreement third party in accordance with Section 6.02(c6.6(b) hereof, and until any Alternative Transaction resulting from such proposal shall have either been consummated or the Company shall have received written notification that any such third party shall no longer seek to engage in an Alternative Transaction with or involving the Company, the Parent shall be entitled to propose or present to the Company any offer in response to such third party's offer, and (an “Alternative Acquisition ii) if, from the date hereof until the Effective Time or the termination of this Agreement”); (E) , any third party shall announce its intention to commence, or shall commence, any tender offer to acquire Shares, Parent and the Purchaser shall be entitled to make any public announcement or proposal, or to take any other action it or they may deem appropriate, in response to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL such announcement or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingtender offer.
Appears in 2 contracts
Sources: Merger Agreement (WDR Acquisition Corp), Merger Agreement (Wonderware Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiatethrough any officer, seek director, employee, representative or knowingly agent of the Company or any of the Company Subsidiaries, solicit or encourage the initiation of (including by way of furnishing non-public information) any inquiries or proposals regarding any merger, sale of assets, sale of shares of capital stock (including without limitation by way of a tender offer) or similar transactions involving the Company or any Company Subsidiaries that if consummated would constitute an Alternative Transaction (as defined below) (any of the foregoing inquiries or proposals being referred to herein as a "COMPANY TAKEOVER PROPOSAL"). Nothing contained in this Agreement shall prevent the Board of Directors of the Company from (i) furnishing information to a third party which has made a BONA FIDE Company Takeover Proposal that is a Superior Proposal (as defined below) not solicited in violation of this Agreement, provided that such third party has executed an agreement with confidentiality provisions substantially similar to those then in effect between the Company and Parent or (ii) subject to compliance with the other terms of this SECTION 4.8, considering and negotiating a bona fide Company Takeover Proposal that is a Superior Proposal not solicited in violation of this Agreement; provided that, as to each of clauses (i) and (ii), the Board of Directors of the Company reasonably determines in good faith (after due consultation with independent counsel, which may be ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇) that it is or is reasonably likely to be required to do so in order to discharge properly its fiduciary duties. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means any proposal made by a third party to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all of the equity securities of the Company entitled to vote generally in the election of directors or all or substantially all the assets of the Company, on terms which the Board of Directors of the Company reasonably believes (after consultation with a financial advisor of nationally recognized reputation) to be more favorable from a financial point of view to its stockholders than the Offer and the Merger taking into account at the time of determination all factors relating to such proposed transaction deemed relevant by the Board of Directors of the Company, including, without limitation, the financing thereof, the proposed timing thereof and all other conditions thereto and any Acquired changes to the financial terms of this Agreement proposed by Parent and Purchaser. "ALTERNATIVE TRANSACTION" means any of (i) a transaction pursuant to which any person (or group of persons) other than Parent or its affiliates (a "THIRD PARTY") acquires or would acquire more than 20% of the outstanding shares of any class of equity securities of the Company) any inquiry, discussion, whether from the Company or pursuant to a tender offer or request that constitutes, exchange offer or could reasonably be expected to lead to, an Acquisition Proposalotherwise, (Bii) enter into, continue a merger or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating other business combination involving the Company pursuant to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of which any Third Party under acquires more than 20% of the outstanding equity securities of the Company or the entity surviving such merger or business combination (iii) any standstill transaction pursuant to which any Third Party acquires or confidentiality agreementwould acquire control of assets (including for this purpose the outstanding equity securities of Company Subsidiaries and securities of the entity surviving any merger or business combination including any of the Company Subsidiaries) of the Company or any Company Subsidiaries having a fair market value (as determined by the Board of Directors of the Company in good faith) equal to more than 20% of the fair market value of all the assets of the Company and the Company Subsidiaries, taken as a whole, immediately prior to such transaction, or (iv) any other consolidation, business combination, recapitalization or similar transaction involving the Company or any of the Company Subsidiaries, other than the transactions contemplated by this Agreement; provided PROVIDED, HOWEVER, that notwithstanding the foregoingterm Alternative Transaction shall not include any acquisition of securities by a broker dealer in connection with a bona fide public offering of such securities. Notwithstanding anything to the contrary contained in this SECTION 4.8 or elsewhere in this Agreement, prior to the Effective Time, the Company shall be permitted may, in connection with a possible Company Takeover Proposal, refer any third party to grant this SECTION 4.8 and SECTION 8.7 and make a waiver copy of or terminate any “standstill” or similar agreement or obligation of any Third Party this SECTION 4.8 and SECTION 8.7 available to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingthird party.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Alarmguard Holdings Inc), Merger Agreement (Tyco International LTD /Ber/)
No Solicitation. Except as permitted by (a) Notwithstanding any provision in this Section 6.02Agreement to the contrary, during the period from beginning on the date of this Agreement and continuing until 11:59 p.m., Pacific Time, on November 7, 2009 (the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01“Go-Shop Period Termination Date”), the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers Company Representatives shall have the right, under the direction of each Acquired the Company and (ii) instruct and use its reasonable best efforts Board or any committee thereof, to cause the other Representatives of each Acquired Company not to, directly or indirectly: (Ai) solicit, initiate, seek solicit or knowingly encourage (the submission of Acquisition Proposals from one or more Persons, including by way of furnishing contacting third parties or public disclosure, and providing access to non-public information relating pursuant to the prior execution of a Qualifying Confidentiality Agreement with any such Person; provided, that the Company shall promptly provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Acquired Companysuch Person or its representatives which was not previously provided to Parent; and (ii) participate in discussions or negotiations regarding, and take any inquiry, discussion, offer other action to facilitate any inquiries or request the making of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal.
(b) Subject to Sections 5.4(c) and 5.4(d), from the Go-Shop Period Termination Date until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and the Company Representatives not to, directly or indirectly: (Bi) enter intoinitiate, continue solicit or otherwise participate in knowingly take any discussions action to facilitate or negotiations withencourage (including by way of providing information) the submission of any inquiries, proposals or offers or any other efforts or attempts that constitute, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could may reasonably be expected to lead to, an Acquisition Proposal, or engage in any discussions or negotiations with respect thereto, (Cii) grant approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal, (iii) withdraw (or change, amend, modify or qualify in a manner adverse to Parent or Purchaser), or propose publicly to withdraw (or change, amend, modify or qualify, in a manner adverse to Parent or Purchaser), or otherwise make any waiverstatement or proposal inconsistent with, amendment the Company Board Recommendation (any action or release failure to act set forth in the foregoing clauses (ii) or (iii), a “Change of Board Recommendation”), or (iv) enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar Contract relating to an Acquisition Proposal or enter into any Contract or agreement in principle that is intended or would reasonably be expected to lead to an Acquisition Proposal or that would reasonably be expected to cause the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the transactions contemplated hereby. Subject to Section 5.4(c), on the Go-Shop Period Termination Date, the Company shall immediately cease and cause to be terminated any activities that would otherwise be a violation of this Section 5.4(b) conducted theretofore by the Company or the Company Representatives with respect to any Acquisition Proposal. Subject to Section 5.4(c), with respect to parties with whom discussions or negotiations have been terminated on or prior to the Go-Shop Period Termination Date, the Company shall use commercially reasonable efforts to require such parties to promptly return or destroy in accordance with the terms of the applicable Qualifying Confidentiality Agreement any confidential information previously furnished by the Company. Notwithstanding anything to the contrary in this Section 5.4(b), following the Go-Shop Period Termination Date, the Company and the Company Representatives may continue discussions and negotiations with, and provide information to, any Person, group of related Persons or group that (i) includes any Person with whom the Company is having ongoing discussions or negotiations prior to the Go-Shop Period Termination Date regarding a possible Acquisition Proposal and (ii) has been identified in writing to Parent (any such Person or group, a “Go-Shop Party”) if the Board of Directors determines in good faith (after consultation with its financial advisors and outside counsel) that such Person could reasonably be expected to make an Acquisition Proposal that after further discussions or negotiations could reasonably result in a Superior Proposal.
(c) Notwithstanding Section 5.4(b), if at any time following the Go-Shop Period Termination Date and prior to obtaining the Company Stockholder Approval, (i) the Company receives a bona fide written Acquisition Proposal from any other third party that is not a Go-Shop Party, and (ii) the Company Board determines in good faith (after consultation with its financial advisors and outside counsel) that (A) such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (B) the failure to take the actions referred to in clause (x) or (y) of this sentence would reasonably be likely to be inconsistent with its obligations under applicable Law, the Company may take the following actions: (x) furnish non-public information to the Person making such Acquisition Proposal, provided, that (1) prior to so furnishing such information, the Company shall have received from such Person a Qualifying Confidentiality Agreement, and (2) all such information shall previously have been provided to Parent and Purchaser or is provided to Parent and Purchaser prior to or substantially contemporaneously with the time it is provided to the Person making such Acquisition Proposal or such Person’s representatives, and (y) engage or participate in any discussions or negotiations with such Person with respect to the Acquisition Proposal. At any time following the date of this Agreement, the Company shall, as promptly or reasonably practicable (and in any event within forty-eight (48) hours), advise Parent orally and in writing of the receipt from any Person of (1) any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal and the material terms of such proposal and (2) any request for non-public information relating to the Company or any of its Subsidiaries in connection with a potential Acquisition Proposal, or for access to the properties, books or records of the Company by any Person that informs the Company that is it considering making, or has made, an Acquisition Proposal, in each case, including the identity of the Person(s) making such proposal, inquiry or request, and, if applicable, providing copies of any Third Party under documents or correspondence evidencing such proposal or inquiry. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status and any standstill material developments, discussions and negotiations concerning such Acquisition Proposal, and the material terms and conditions thereof, including by providing a copy of all material documentation or confidentiality agreement; provided correspondence relating thereto that notwithstanding is exchanged between the Person making such Acquisition Proposal (or its representatives) and the Company (or the Company Representatives). Without limiting the foregoing, the Company shall be permitted will promptly (within two (2) Business Days) notify Parent orally and in writing if it determines to grant begin providing information to, or to engage in negotiations with, any Person other than a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Go-Shop Party concerning an Acquisition Proposal.
(d) Notwithstanding anything to the extent such agreement or obligation prohibits a confidential proposal being made to contrary contained in Section 5.4(b), if the Company receives an Acquisition Proposal which the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined concludes in good faith, after consultation with its outside counsel and financial and outside legal advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent (including pursuant to clause (II) below), the Company Board may at any time prior to the Acceptance Time, (i) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (ii) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that failure the Company shall not terminate this Agreement pursuant to the foregoing clause (ii), unless concurrently with or prior to such termination the Company pays the Breakup Fee and otherwise complies with the provisions of Section 7.1(e) and Section 7.3; and provided, further that the Company Board may not effect a change of Company Board Recommendation or terminate this Agreement pursuant to the foregoing clause (ii) unless (A) the Company shall not have breached this Section 5.4, (B) the Company Board shall have taken into account any changes to the terms of this Agreement proposed by Parent in response to a Notice of Adverse Recommendation, and (C):
(i) the Company shall have provided written notice to Parent (“Notice of Adverse Recommendation”) at least five (5) Business Days in advance (the “Notice Period”) of its intention to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from such Superior Proposal, which notice shall specify the restrictions on “business combinations” contained in Section 203 material terms and conditions of such Superior Proposal, and shall have contemporaneously provided a copy of the DGCL relevant proposed transaction agreements with the party making such Superior Proposal and other material documents (it being understood and agreed that any amendment to the financial terms or any other applicable Takeover Statute or otherwise cause material term of such restrictions not to apply or Superior Proposal shall require a new Notice of Adverse Recommendation and a new notice period, which shall be five (F5) resolve, agree, authorize or commit to do any Business Days in advance of the foregoingCompany Board’s intention to take action pursuant to this Section 5.4(d)); and
(ii) prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, the Company shall, and shall cause the Company Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal.
(e) The Company agrees that any willful and material violations of the restrictions set forth in Section 5.4(b) by any Company Representative shall be deemed to be a breach of Section 5.4(b) by the Company.
(f) The Company shall not release any third party from, or waive any provisions of, any confidentiality or “standstill” or similar agreement in favor of the Company.
(g) Nothing contained in this Section 5.4 shall prohibit the Company Board from disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, an express rejection of any applicable Acquisition Proposal or an express reaffirmation of its recommendation to its stockholders in favor of the Offer shall be deemed to be a Change of Board Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Pulmuone Cornerstone Corp), Merger Agreement (Monterey Gourmet Foods)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of (a) Notwithstanding any provision in this Agreement until to the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01contrary, the Company shall not, and nor shall (i) cause it authorize or permit any of its Subsidiaries and to, nor shall it authorize or permit any director, officer or employee of the respective directors and officers Company or any of each Acquired its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company and (ii) instruct and use or any of its reasonable best efforts to cause the other Representatives of each Acquired Company not Subsidiaries to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesencourage, or take any other action to knowingly facilitate, any Takeover Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to, an Acquisition Proposal, to a Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public person (or any representative thereof) any information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or otherwise cooperate in any way with any person (or any representative thereof) with respect to, any Takeover Proposal; provided, however, that at any time prior to obtaining the Stockholder Approval, in response to a bona fide written unsolicited Takeover Proposal that the Board of Directors of the Company determines in good faith constitutes or could reasonably be expected to lead to a Superior Proposal, and which Takeover Proposal did not result from a breach of this Section 4.02 or any other provision of this Agreement, the Company may, and may permit and authorize its Subsidiaries and its representatives and its Subsidiaries’ representatives to, an Acquisition Proposalin each case subject to compliance with Section 4.02(c) and the other provisions of this Agreement, (CA) grant any waiverfurnish information with respect to the Company and its Subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement which contains terms that are no less restrictive than those contained in that certain confidentiality and non-disclosure letter agreement dated June 30, amendment or release of any Third Party under any standstill or confidentiality agreement; 2010 between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”), provided that notwithstanding all such information had been provided, or is concurrently provided, to Parent, and (B) participate in discussions or negotiations with, and only with, the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries shall be permitted deemed to grant be a waiver breach of or terminate any “standstill” or similar agreement or obligation of any Third Party to this Section 4.02(a) by the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingCompany.
Appears in 2 contracts
Sources: Merger Agreement (International Business Machines Corp), Merger Agreement (Unica Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement until the earlier of (i) the Effective Time or and (ii) the date of the termination of this Agreement in accordance with Section 8.01the Merger Agreement, the Company each Shareholder agrees that it shall not, and shall (i) cause each of its Subsidiaries Affiliates, and the its and their respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly (A) solicit, initiate, seek initiate or knowingly encourage (including by way the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer proposal that constitutes or request that constitutes, or could is reasonably be expected likely to lead to, an Acquisition to a Takeover Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers person any of the Acquired Companies to, any Third Party, in each case, Company’s or its Subsidiaries’ confidential information with respect to, any Takeover Proposal, or (C) enter into any Takeover Proposal Documentation with respect to a Takeover Proposal. Notwithstanding the foregoing, if the Company Board of Directors has determined, after consultation with its financial advisor and outside counsel, that could an unsolicited bona fide written Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, if the Company is participating in discussions and negotiations with, or furnishing information to the person making such Takeover Proposal pursuant to and in compliance with Section 6.06 of the Merger Agreement, then, notwithstanding clauses (A) and (B) above, such Shareholder, its Affiliates and their respective Representatives may also participate in discussions and negotiations with, and furnish information to, an Acquisition Proposal, (C) grant any waiver, amendment or release the person making such Takeover Proposal at the request and direction of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver Special Committee of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board of Directors. Each Shareholder and its Affiliates, and its and their respective Representatives, shall immediately cease and cause to be terminated all discussions or the Special Committee if the Company Board negotiations with any person conducted heretofore (acting upon the recommendation of the Special Committeeother than with Parent) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal Takeover Proposal, except to the extent any discussions or negotiations by and among the parties to the A&R SSCSA are required pursuant to the terms of such agreement as in effect as of the date hereof.
(b) For the avoidance of doubt, for the purposes of this Section 4.04, any officer, director, employee, agent or advisor of the Company (in each case, in their capacities as such) shall be deemed not to be a Representative of such Shareholder (other than an Acceptable Confidentiality such directors as are party to this Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition or a trustee of a party to this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 2 contracts
Sources: Voting and Support Agreement (Shapiro Steven A.), Voting and Support Agreement (Protective Insurance Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company shall will not, and shall (i) cause will not permit any of its Subsidiaries or its Subsidiaries' officers, directors or employees to, and the respective directors and officers of each Acquired Company and (ii) instruct and will use its reasonable best efforts to cause the all of its and its Subsidiaries' attorneys, financial advisors, agents and other Representatives of each Acquired Company representatives not to, directly or indirectly: (A) , solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Companyinformation) any inquiry, discussion, offer or request that constitutesTakeover Proposal, or could reasonably be expected to lead toengage in or continue discussions or negotiations relating thereto; provided, an Acquisition Proposalhowever, (B) enter into, continue or otherwise participate that the Company may engage in any discussions or negotiations with, or furnish any non-public information relating to concerning the Acquired Companies toCompany and its business, properties or afford access to the books or records or officers of the Acquired Companies assets to, any Third Partythird party which makes a Takeover Proposal (as hereinafter defined) if the Board of Directors of the Company determines, in each caseits good faith judgement, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release based on the opinion of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party independent outside legal counsel to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisorsCompany, that failure failing to take such action would be inconsistent with its fiduciary constitute a breach of such Board's duties under Applicable Lawapplicable law; provided, (D) approvefurther, endorsethat nothing in this Section 6.2 shall prevent the Company or the Board from taking, recommend or enter intoand disclosing to the Company's stockholders, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect regard to any Acquisition Proposal other than tender offer or from making such disclosure to the Company's stockholders which, as advised in an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 opinion of the DGCL or any other Company's independent outside legal counsel, is required under applicable Takeover Statute or otherwise cause such restrictions law; provided, further, that the Board shall not to apply or (F) resolve, agree, authorize or commit to do any recommend that the stockholders of the foregoing.Company tender their shares in connection with any such tender offer unless the Board determines, in its good faith judgment, based on the opinion of independent outside legal counsel to the Company, that failing to take such action would constitute a breach of the Board's duties under applicable law. The Company will promptly notify Parent of any Takeover Proposal, including the material terms and conditions thereof and the identity of the person or group making such Takeover Proposal, and will promptly notify Parent of any determination by the Company's Board of
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Aon Corp), Merger Agreement (Alexander & Alexander Services Inc)
No Solicitation. Except as permitted by this Section 6.02(a) The Company agrees that, during the period from and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company it shall not, and nor shall it authorize or permit any officer, director or employee or any investment banker, attorney, accountant, agent or other advisor or representative of the Company (collectively, the "Representatives" of the Company) to, (i) cause its Subsidiaries and solicit, initiate or knowingly encourage the respective directors and officers submission of each Acquired Company and any Takeover Proposal (as defined below), (ii) instruct and use its reasonable best efforts enter into any agreement with respect to cause the other Representatives of each Acquired Company not to, directly a Takeover Proposal or indirectly: (Aiii) solicit, initiate, seek participate in any discussions or knowingly encourage (including by way of furnishing non-public information relating to negotiations regarding any Acquired Company) any inquiry, discussion, offer or request proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition any Takeover Proposal; provided, however, that if at any time prior to receipt of the Company Stockholders' Approval the Board of Directors of the Company determines in good faith, after consultation with outside counsel and financial advisors, that failing to take such action could reasonably be expected to be a breach of its fiduciary duties to the Company's stockholders under applicable law, and subject to providing 3 days prior written notice of its decision to take such action to UCU, the Company may, in response to a Takeover Proposal made after the date of this Agreement which was not solicited by it or its Representatives and which did not otherwise result from a breach of this Section 6.01 (Bx) enter into, continue or otherwise 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 counsel) and (y) participate in discussions, investigations and/or negotiations regarding such Takeover Proposal. For all purposes of this Agreement, "Takeover Proposal" means any proposal or offer to acquire, directly or indirectly, in one transaction or a series of related transactions, 20% or more of the shares of Company Common Stock outstanding (whether, in either case, by purchase, merger, consolidation, share exchange, business combination or other similar transaction) or 20% or more of the assets of the Company, other than the Merger or the transactions contemplated by Section 6.01(a) of the Company Disclosure Schedule. The Company immediately upon execution of this Agreement shall cease and cause to be terminated all existing discussions or negotiations with, or furnish with any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, Persons conducted heretofore with respect to, or that could reasonably be expected to lead to, an Acquisition any Takeover Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party subject to the extent such agreement or obligation prohibits a confidential proposal being made Company's rights pursuant to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with this Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing6.01.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Utilicorp United Inc), Merger Agreement (Empire District Electric Co)
No Solicitation. Except as permitted by (a) Subject to the remainder of this Section 6.026.6, during from the period from Effective Date until the Closing Date, the Company agrees that it shall not, and that it shall cause its Subsidiaries and any Representative of the Company or any of its Subsidiaries not to, (i) solicit, initiate, or engage in any discussions or negotiations with, furnish any nonpublic information regarding the Company or any of its Subsidiaries to, or otherwise cooperate with, any Person in connection with or in response to an Acquisition Transaction or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Transaction, (ii) approve, endorse, or recommend any Acquisition Transaction or (iii) enter into any letter of intent or similar document or any agreement contemplating or otherwise relating to any Acquisition Transaction.
(b) Notwithstanding anything to the contrary contained in Section 6.6(a), if at any time following the date of this Agreement until the earlier and prior to obtaining stockholder approval of the Effective Time or the termination of this Agreement in accordance with Section 8.01applicable Contemplated Transactions, the Company shall not, and shall (i) cause the Company or its Subsidiaries and the respective directors and officers Representatives has received an Acquisition Proposal that did not otherwise result from a breach of each Acquired Company this Section 6.6 from a third party, and (ii) instruct the Board of Directors determines in good faith (after consultation with its outside legal counsel and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (Afinancial advisors) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that such Acquisition Proposal constitutes, or could would reasonably be expected to lead to, an Acquisition a Superior Proposal, then the Company may, subject to compliance with Section 6.6(e), (A) furnish nonpublic information regarding the Company and its Subsidiaries to the third party making such Acquisition Proposal and (B) enter into, continue or otherwise participate in any discussions or negotiations withwith the third party making such Acquisition Proposal regarding such Acquisition Proposal; provided, or furnish any non-public information relating however, that the Company will as promptly as reasonably practicable (but in no event later than 48 hours) after it is provided to such third party provide to the Acquired Companies toPurchaser any nonpublic information concerning the Company or its Subsidiaries provided to such third party which was not previously provided to Purchaser; and provided, or afford access to further, that neither Company nor the books or records or officers Board of Directors will take any of the Acquired Companies to, any Third Party, actions described in each case, with respect to, (A) or that could reasonably be expected to lead to, an Acquisition Proposal, (CB) grant any waiver, amendment or release above unless and until (i) the Board of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors determines in good faith, after consultation with its outside legal counsel and financial and outside legal advisors, that the failure to take such that action would be inconsistent with its fiduciary duties to the Company Stockholders under Applicable Lawapplicable law and (ii) the Company shall have delivered to the Purchaser a prior written notice advising the Purchaser that it intends to take such action at least one (1) Business Day prior to taking such action.
(c) If: (A) after the date of this Agreement, an Acquisition Proposal to effect a transaction of the type referred to in the definition of the term Superior Proposal is made to the Company and is not withdrawn; (B) such Acquisition Proposal was not obtained or made in breach of this Section 6.6; (C) at least five (5) Business Days prior to any meeting of the Board of Directors at which the Board of Directors will consider and determine whether such offer is a Superior Proposal, the Company provides the Purchaser with a written notice specifying the date and time of such meeting; (D) approvethe Board of Directors determines at such meeting in good faith, endorseafter obtaining and taking into account the advice of an independent financial advisor and the advice of outside legal counsel, recommend or enter intothat such offer constitutes a Superior Proposal and that, in light of such Superior Proposal, a Company Change in Recommendation is required in order for the Board of Directors to comply with its fiduciary obligations to the Company’s Stockholders under applicable Laws, the Board may make a Company Change in Recommendation.
(d) During the period from the Effective Date to the Closing Date, the Company shall notify the Purchaser promptly after receipt by the Company of any Acquisition Proposal, or publicly propose of any request for nonpublic information relating to approvethe Company or any of its Subsidiaries or for access to the business, endorseproperties, recommend assets, books, or enter intorecords of the Company or any of its Subsidiaries by any Person in connection with an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any letter Acquisition Proposal, indication or request. The Company shall keep the Purchaser reasonably informed, on a prompt basis, of intentthe status and details of any such Acquisition Proposal, memorandum indication or request and promptly provide the Purchaser with copies of understandingall written correspondence or communications sent or provided to or by the Company and its Representatives in connection with any Acquisition Proposal.
(e) Notwithstanding anything to the contrary in the foregoing, agreement the Board may take the actions described in principleSection 6.6(c) if (A) the Company promptly notifies the Purchaser, acquisition agreementin writing, merger agreement or other Contract at least five Business Days (the “Superior Proposal Notice Period”) before taking such action of its intention to take such action with respect to a Superior Proposal, (B) the Company specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes a copy of the Acquisition Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) and any related documents including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal, (C) the Company shall during the Superior Proposal Notice Period, negotiate with the Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if the Purchaser, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least two Business Days remains in the Superior Proposal Notice Period subsequent to the time such party notifies the other party of any such material revision (it being understood that there may be only one extension)), and (D) the Board (or a committee thereof) determines in good faith, after consulting with its financial advisors and outside legal counsel, that such Acquisition Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by the Purchaser during the Superior Proposal Notice Period in the terms and conditions of this Agreement) and that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable law.
(f) On the Effective Date, the Company shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal other than an Acceptable Confidentiality Agreement and shall request that any such Person (or its agents and advisors) in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action possession of confidential information about the Company or its Subsidiaries that was previously furnished to exempt any Third Party from the restrictions such Person by or on “business combinations” contained in Section 203 behalf of the DGCL Company or any other applicable Takeover Statute of its Subsidiaries to return or otherwise cause destroy all such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoinginformation.
Appears in 2 contracts
Sources: Securities Purchase Agreement (ProFrac Holding Corp.), Securities Purchase Agreement (Flotek Industries Inc/Cn/)
No Solicitation. Except as permitted by (a) Subject to the provisions of this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.014.02, the Company shall notagrees that until the Offer Closing neither the Company nor any Subsidiary of the Company shall, and shall (i) cause the Company and each of its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and shall use its their reasonable best efforts to cause the other their Representatives of each Acquired Company and Affiliates not to, directly or indirectly: , (A) solicit, initiate, seek intentionally encourage or knowingly encourage intentionally facilitate any inquiry with respect to, or the making, submission or announcement of, any Alternative Proposal, (including B) participate in any negotiations regarding an Alternative Proposal with, or furnish any nonpublic information regarding an Alternative Proposal to, any Person that has made an Alternative Proposal, (C) engage in discussions regarding an Alternative Proposal with any Person that has made an Alternative Proposal, except to notify such Person as to the existence of the provisions of this Section 4.02, or (D) enter into any letter of intent or agreement in principle or any agreement providing for any Alternative Proposal (except for confidentiality agreements permitted under this Section 4.02).
(b) Notwithstanding anything in this Section 4.02 to the contrary, at any time after the date hereof but prior to the Offer Closing:
(i) if the Company receives an Alternative Proposal which did not result from any breach of this Section 4.02 in any material respect and (A) which constitutes a Qualifying Proposal (as determined by way of furnishing the Company Board, acting reasonably and in good faith) or (B) which the Company Board determines in good faith could reasonably be expected to result in a Qualifying Proposal, the Company may take the following actions: (x) furnish non-public information relating to the third party making such Alternative Proposal, if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement, and/or (y) engage in discussions or negotiations with the third party with respect to the Alternative Proposal, and/or (z) require Offeror to extend the Offer, for no less than five (5) and no more than ten (10) Business Days, provided, that such extension shall not cause the Expiration Time to be later than 12:00 Midnight, New York City Time, on the Outside Date;
(ii) the Company Board may terminate this Agreement pursuant to Section 5.04(b) if it receives an Alternative Proposal that the Company Board determines, acting reasonably and in good faith, is a Qualifying Proposal; or
(iii) Offeror may terminate this Agreement pursuant to Section 5.05(b) if (A) the Company has taken any Acquired of the actions permitted by clause (x) or clause (y) of Section 4.02(b)(i) and (B) on the day that is five (5) Business Days prior to the Expiration Date (as may be extended) the Company has not terminated, by written notice given to such third party and Offeror, the furnishing of information to, or any discussions or negotiations with, such third party.
(c) Nothing contained in this Agreement shall prohibit the Company or its Company Board from making any disclosure to its shareholders if the Company Board determines in good faith that the failure of the Company Board to make such disclosure would be inconsistent with the directors’ exercise of their fiduciary duties to the Company and the Company’s shareholders.
(d) The Company shall promptly notify Offeror in writing of the receipt by the Company or, to the Knowledge of the Company, by any of its Representatives, of any Alternative Proposal or request for information or inquiry, discussionin each case, offer from any third party, that expressly contemplates or request that constitutes, the Company believes would reasonably be expected to lead to an Alternative Proposal. The Company shall promptly notify Offeror of any determination by it that an Alternative Proposal constitutes a Qualifying Proposal or could reasonably be expected to lead to, an Acquisition result in a Qualifying Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 2 contracts
Sources: Investment and Tender Offer Agreement (Global Aviation Leasing Co., Ltd.), Investment and Tender Offer Agreement (Avolon Holdings LTD)
No Solicitation. Except (a) The Company shall, and shall cause its Representatives to, cease any negotiations that may be ongoing as permitted by this Section 6.02, during the period from of the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the any Person with respect to any Takeover Proposal. The Company shall not, and shall not authorize or (to the extent within its control) permit the Company’s Representatives to, (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and solicit any Takeover Proposal or (ii) instruct participate in any negotiations with any third party regarding any Takeover Proposal. Notwithstanding the foregoing, the Company and use its reasonable best efforts the Company’s Representatives may in any event have discussions with any Person in order to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek clarify and understand the terms and conditions of any bona fide written inquiry or knowingly encourage proposal made by such Person (including by way so long as such inquiry or proposal was unsolicited or was made prior to the execution of furnishing non-public information relating this Agreement and so long as such inquiry or proposal did not result from a willful breach of this Section 6.5) and to any Acquired Company) any inquiry, discussion, offer determine whether such inquiry or request that constitutes, proposal constitutes or could reasonably be expected to lead to, an Acquisition Proposal, to a Superior Proposal and (B) enter intonotify such Person of the provisions of this Agreement. The Company agrees that any violation of the restrictions set forth in this Section 6.5 by any Representative of the Company or any of its Subsidiaries, continue at the direction or otherwise participate in any discussions with the consent of the Company or negotiations withits Subsidiaries (or with the prior Knowledge of the Company or its Subsidiaries if the Company shall have failed to instruct such Representatives not to commit such violation upon becoming aware of such proposed violation), or furnish any non-public information relating shall be deemed to be a breach of this Section 6.5 by the Company. If, after the date of this Agreement and prior to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingAcceptance Time, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined receives an unsolicited bona fide Takeover Proposal that it determines in good faith, after consultation with (and consideration of the advice of) the Company’s outside counsel and the Company Financial Advisor, constitutes or could reasonably be expected to lead to a Superior Proposal, then the Company may furnish any information with respect to the Company and the Company’s Subsidiaries to the Person making such Takeover Proposal and participate in discussions and negotiations with such Person regarding a Takeover Proposal; provided that (x) such Person enters into an Acceptable Confidentiality Agreement and (y) a copy of all such information not previously provided to Parent (or its Representatives) is promptly provided to Parent.
(b) Except as expressly permitted by this Section 6.5(b), the Company Board shall not (i) (A) withdraw or modify, in a manner adverse to Parent, the Company Board Recommendation or (B) publicly recommend to the Company’s stockholders a Takeover Proposal (any action described in this clause (i) being referred to as a “Recommendation Change”) or (ii) authorize the Company or any of the Company’s Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, an “Alternative Acquisition Agreement”). However, if, after the date of this Agreement and prior to the Acceptance Time, the Company Board receives an unsolicited bona fide Takeover Proposal that, after consultation with (and consideration of the advice of) the Company’s outside counsel and the Company Financial Advisor, the Company Board concludes in good faith constitutes a Superior Proposal, then the Company Board may withdraw or modify the Company Board Recommendation or recommend such Superior Proposal and the Company or the Company’s Subsidiaries may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal if the Company shall have concurrently with entering into such Alternative Acquisition Agreement terminated this Agreement pursuant to Section 8.4(b).
(c) Nothing contained in this Agreement (including, without limitation, this Section 6.5) shall prohibit the Company Board from (i) making any “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9 under the Exchange Act or (ii) complying with its disclosure obligations under U.S. federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (iii) disclosing the fact that the Company Board has received a Takeover Proposal and the terms of such proposal, if the Company Board determines, after consultation with its outside financial and outside legal advisorscounsel, that the failure to take any such action actions would be inconsistent with its fiduciary duties under Applicable Lawapplicable Law or to comply with obligations under federal securities Laws; provided that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9 under the Exchange Act shall be deemed to be a Recommendation Change unless the Company Board (A) expressly reaffirms its recommendation to its stockholders in favor of adoption of this Agreement or (B) rejects such other Takeover Proposal.
(d) Notwithstanding anything in this Agreement to the contrary, the Company Board may not effect a Recommendation Change or terminate this Agreement pursuant to Section 8.4(b) unless (i) the Company has: (A) complied in all material respects with this Section 6.5, (DB) approveprovided to Purchaser at least three (3) Business Days’ prior written notice advising Purchaser that the Company Board intends to take such action and specifying the reasons therefor, endorseincluding the terms and conditions of any Superior Proposal that is the basis of the proposed action and the identity of the person making the proposal, recommend and (C) during such three (3) Business Day period, if requested by Purchaser, engaged in good faith negotiations with Purchaser to amend this Agreement in such a manner to improve the terms of this Agreement in favor of the Company so that any Takeover Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal and (ii) at the end of such three (3) Business Day period, such Takeover Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement as a result of the negotiations required by clause (i)(C) or enter intootherwise). In the event of any revisions to a Superior Proposal (including, or publicly propose to approve, endorse, recommend or enter intowithout limitation, any letter of intent, memorandum of understanding, agreement revision in principle, acquisition agreement, merger agreement price or other Contract with respect term), the three (3) Business Day period will restart (it being understood that there may be multiple three (3) Business Day periods pursuant to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with this Section 6.02(c) (an “Alternative Acquisition Agreement”6.5(d); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing).
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
No Solicitation. (a) Except as permitted by otherwise provided in this Section 6.026.5, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company GFI shall not, nor shall it authorize or permit any of the GFI Subsidiaries or any of its and shall (i) cause its Subsidiaries and the Subsidiaries’ respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly (Ai) solicit, initiate, seek solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (including by way of furnishing ii) adopt, or publicly propose to adopt, or allow GFI or any GFI Subsidiary to execute or enter into, any binding or non-public information binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement, undertaking, or understanding in connection with or relating to any Acquired CompanyTakeover Proposal (other than confidentiality agreements permitted under Section 6.5(b)(i)) any inquiryor (iii) other than with CME, discussionMerger Sub 1, offer Merger Sub 2 or request that constitutes, their respective Representatives or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter intoother than informing third parties of the existence of this Section 6.5, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public Person any information or data in connection with or relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third PartyTakeover Proposal. GFI shall, and GFI shall cause the GFI Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement.
(b) Notwithstanding the foregoing, prior to receipt of the GFI Stockholder Approval, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal that was first received after the date hereof and did not otherwise result from a breach of this Section 6.5, and subject to compliance with Section 6.5(d) (Change in Recommendation):
(i) furnish information with respect to GFI and the GFI Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing provisions no less favorable in the aggregate to GFI than those contained in the Confidentiality Agreement then in effect; provided that such confidentiality agreement (A) shall be provided to CME promptly after its execution, (B) shall not contain any provisions that would prevent GFI from complying with its obligation to provide the required disclosure to CME pursuant to this Section 6.5 (No Solicitation) and (C) need not contain a standstill or similar provision that prohibits such Person from making a Takeover Proposal; provided, further, that a copy of all such information provided to such Person has previously been provided to CME or its Representatives or is provided to CME substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal.
(c) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, an Acquisition any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to CME of (Ci) grant such Takeover Proposal or inquiry, (ii) the identity of the Person making any waiver, amendment such Takeover Proposal or release inquiry and (iii) the material terms and conditions of any Third Party under any standstill such Takeover Proposal or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant inquiry (including a waiver of or terminate any “standstill” or similar agreement or obligation copy of any Third Party such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to the extent above and continuing until such agreement or obligation prohibits a confidential proposal being made to the Company Board Takeover Proposal is withdrawn or the Special Committee if the Company Board of Directors of GFI (acting upon the recommendation of the Special Committee) has determined provided written notice to CME that it is prepared to effect a Change in Recommendation pursuant to Section 6.5(d) (Change in Recommendation), (A) once, and not more than once, each day at mutually reasonably agreeable times, GFI (or its outside legal counsel) shall, in person or by telephone, provide CME (or its outside legal counsel) a summary of the status of such Takeover Proposal and the material resolved or unresolved issues (including the stated positions of the parties to such negotiations on such issues) related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery thereof, provide CME (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(d) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to receipt of the GFI Stockholder Approval, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith, faith (after consultation with its outside legal counsel and its independent financial and outside legal advisors, advisor) that the failure to take such action do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under Applicable applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (Di) approvethe Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to CME that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, endorsewhich notice shall, recommend in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by CME, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) CME does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or enter intoobviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by CME, negotiate in good faith with CME and its Representatives (so long as CME and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by CME intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or publicly propose to approveobviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to CME a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(e) Nothing contained in this Section 6.5 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, endorsehowever, recommend or enter intothat neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with except as expressly permitted by Section 6.02(c6.5(d) (an “Alternative Acquisition Change in Recommendation), effect a Change in Recommendation.
(f) For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (GFI Group Inc.)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01Agreement, the Company shall not, and shall (i) cause its Subsidiaries not to, and shall not authorize or (to the respective directors extent within its control) permit any of its and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Subsidiaries’ Representatives of each Acquired Company not to, directly or indirectly: , (Ai) solicit, initiate, seek solicit or knowingly encourage or take any other action designed to result in or facilitate any inquiries regarding or the making of offers or proposals that constitute an Acquisition Proposal, (including by way of furnishing ii) engage in any discussions or negotiations regarding, or provide any non-public information or data to, any Person (other than Parent, Merger Sub or any of their Representatives or any of the Company or its Representatives) with respect to an Acquisition Proposal, (iii) (x) in the case of the Company and its Subsidiaries, approve, recommend or declare advisable any Acquisition Proposal or (y) in the case of any of the Company’s Representatives, publicly approve, recommend or declare advisable any Acquisition Proposal, or (iv) enter into any agreement relating to an Acquisition Proposal (other than a confidentiality agreement referred to below) or requiring the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger. The Company shall, and shall cause its Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations concerning an Acquisition Proposal with any Acquired CompanyPerson conducted and request the prompt return or destruction of all confidential information previously furnished in connection with an Acquisition Proposal.
(b) Notwithstanding Section 4.2(a), at any inquirytime prior to obtaining the Requisite Stockholder Vote, discussion, offer in response to a bona fide written Acquisition Proposal that the Board determines in good faith (after consultation with its outside legal advisors and financial advisors) constitutes or request that constitutes, or could reasonably be expected to lead toto a Superior Proposal, an and which Acquisition Proposal was not solicited after the date hereof by the Company, any of its Subsidiaries or Representatives and was made after the date hereof and did not otherwise result from a breach of Section 4.2(a), the Company may, subject to compliance with this Section 4.2, (i) furnish information with respect to the Company and its Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive to such person than the provisions of the Confidentiality Agreement; provided, however, that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person, and (ii) participate in discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party if and only to the extent such agreement or obligation prohibits a confidential proposal being made to that in connection with the Company foregoing clauses (i) and (ii), the Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined concludes in good faith, after consultation with its outside financial and outside legal advisors, that the failure to take such action would be (or would be reasonably likely to be) inconsistent with its fiduciary duties to the Company’s stockholders under Applicable LawDelaware law.
(c) Notwithstanding anything to the contrary contained herein, (Dthe Board shall not be entitled to exercise its right to make an Adverse Recommendation Change or terminate this Agreement under Section 7.1(d) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to a Superior Proposal unless (i) the Company has complied in all material respects with this Section 4.2, (ii) the Company promptly notifies Parent, in writing, at least four (4) Business Days before taking that action, of its intention to do so in response to an Acquisition Proposal that constitutes a Superior Proposal (in which case such notification shall have attached thereto the most current version of any proposed agreement or a detailed summary of the material terms of any such proposal and the identity of the offeror) and (iii) during such four-Business Day period, if requested by Parent, the Company and its Representatives shall engage in good faith negotiations with Parent and its Representatives to amend this Agreement in such a manner that any Acquisition Proposal other than an Acceptable Confidentiality which was determined to constitute a Superior Proposal no longer is a Superior Proposal (taking into account any changes to the financial terms of this Agreement in accordance with proposed by Parent following the notice provided pursuant to Section 6.02(c4.2(c)(ii)) (an “Alternative it being understood that any amendment to the financial terms or other material terms of the Acquisition Agreement”); (E) take any action Proposal which was determined to exempt any Third Party constitute a Superior Proposal shall require a new written notification from the restrictions on “business combinations” contained in Company and the Company shall be required to comply against with this Section 203 4.2(c), except that references to the four (4) Business Day period shall be deemed references to a two-Business Day period).
(d) In addition to the obligations of the DGCL Company set forth in paragraphs (a), (b) and (c) of this Section 4.2, the Company shall as promptly as practicable (and in any event within 24 hours after receipt) notify Parent orally and in writing of any Acquisition Proposal, such notice to include the identity of the person making such Acquisition Proposal and a copy of such Acquisition Proposal, including draft agreements or term sheets submitted in connection therewith (or, where no such copy is available, a reasonably detailed description of such Acquisition Proposal), including any modifications thereto. The Company shall (i) keep Parent reasonably informed in all material respects of the status and details (including any change to the terms thereof) of any Acquisition Proposal and (ii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written material sent or provided to the Company or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do of its Subsidiaries from any person that describes any of the foregoingterms or conditions of any Acquisition Proposal. The Company shall not, and shall cause the Company’s Subsidiaries not to, enter into any Contract with any person subsequent to the date of this Agreement that prohibits the Company from providing such information to Parent.
(e) Nothing contained in this Section 4.2 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a)(2) or (3) under the Exchange Act or making a statement required under Rule 14d-9 under the Exchange Act; provided, however, that (i) any such disclosure (other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Board with respect to an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Board, in connection with such communication, publicly reaffirms the Company Recommendation, and (ii) in no event shall the Company or the Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 4.2(b).
Appears in 2 contracts
Sources: Merger Agreement (Owens & Minor Inc/Va/), Agreement and Plan of Merger (Medical Action Industries Inc)
No Solicitation. Except as permitted by this Section 6.02, during (a) From and after the period from the date execution of this Agreement until and for the earlier remainder of the Effective Time or the termination of this Agreement in accordance with Section 8.01Pre-Closing Period, the Company shall notshall, and shall (i) cause its the Company Subsidiaries and the their respective directors Representatives, and officers of each Acquired Company and shall instruct (ii) instruct and use its reasonable best efforts to cause the other cause) its Representatives of each Acquired Company not to, directly immediately cease and cause to be terminated any solicitation, encouragement, discussions or indirectly: (A) solicit, initiate, seek negotiations that may be ongoing with any Person or knowingly encourage (including by way of furnishing non-public information relating its Representatives with respect to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, and shall promptly request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. The Company and the Company Subsidiaries shall not modify, amend, terminate, waive, release or fail to enforce any provisions of any confidentiality agreement or any standstill provisions of any confidentiality agreement (B) enter into, continue or otherwise participate any similar provisions in any discussions agreement) to which the Company or negotiations with, or furnish any non-public information of the Company Subsidiaries is a party relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that that, notwithstanding anything in this Agreement to the foregoingcontrary, prior to the Company’s receipt of the Company Stockholder Approvals, the Company and the Company Subsidiaries shall be permitted to grant a waiver modify, amend, terminate, waive, release or fail to enforce any provisions of any such confidentiality agreement or terminate any “standstill” standstill provisions (or similar agreement or obligation of any Third Party to the extent such agreement related provisions or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee agreement), if the Company Board (acting upon the recommendation of the Special Committee) has or the Special Committee shall have determined in good faith, (after consultation with its outside financial and outside legal advisors, counsel) that the failure to take such action would is reasonably likely to be inconsistent with its the applicable directors’ fiduciary duties under Applicable applicable Law.
(b) Except as permitted by this Section 7.04, during the Pre-Closing Period, the Company agrees that neither it nor any Company Subsidiary or any of their respective Representatives will (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries with respect to or which would reasonably be expected to lead to the submission of, any Acquisition Proposal, (Dii) approveengage in, endorse, recommend continue or enter intootherwise participate in discussions or negotiations regarding, or publicly propose furnish to approveany Person any non-public information in connection with, endorseany Acquisition Proposal, recommend or except to notify such Person of the existence of this Section 7.04(b), (iii) except for an Acceptable Confidentiality Agreement, enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect similar agreement relating to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) or that would require the Company to abandon, terminate or fail to consummate the Merger (each, an “Alternative Acquisition Agreement”); , (Eiv) take approve, endorse or recommend any action proposal that constitutes, or would reasonably be expected to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not lead to apply an Acquisition Proposal or (Fv) resolve, agree, authorize resolve or commit agree to do any of the foregoing; provided that, if, prior to the earlier to occur of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, the Company receives an Acquisition Proposal that did not result from a material breach of this Section 7.04 and the Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal is, or could reasonably be expected to result in, a Superior Proposal and a failure to take the actions contemplated by the following clauses (A) or (B) would be reasonably likely to be inconsistent with the applicable directors’ fiduciary duties under applicable Law, the Company and the Company Subsidiaries and their respective Representatives may, prior to the Company’s receipt of the Company Stockholder Approvals, (A) engage in discussions or negotiations regarding such Acquisition Proposal (or contact such Person to clarify the terms and conditions thereof and otherwise facilitate such Acquisition Proposal or assist such Person and such Person’s Representatives and financing sources) and (B) furnish information to, or afford access to the business, properties, assets, books, records or personnel, of the Company or any Company Subsidiary, in each case, with the Person making or renewing such Acquisition Proposal and its Representatives, so long as the Company and such Person have executed an Acceptable Confidentiality Agreement; provided, however, that (x) any such information or access has previously been made available to the Merger Corporation or shall be made available to the Merger Corporation prior to, or substantially concurrently with, the time such information is made available to such Person and (y) any competitively sensitive information or data provided to any such Person who is, or whose Affiliates include, a direct competitor, supplier or customer of the Company or any Company Subsidiary will be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data, as reasonably determined by the Company and the Special Committee, each with advice from its outside legal counsel.
(c) From and after the date of this Agreement until the termination of this Agreement pursuant to Article IX, the Company shall promptly (and, in any event, within 24 hours) after receipt of any Acquisition Proposal, notify the Merger Corporation of the material terms of such Acquisition Proposal received by the Company, any Company Subsidiary or any of their respective Affiliates, and the identity of the Person or “group” making such Acquisition Proposal and shall provide the Merger Corporation with unredacted copies of any written requests, proposals or offers, including proposed agreements, and the material terms and conditions of any proposals or offers (or where no such copies are available, a reasonably detailed written description thereof). From and after the date of this Agreement until the termination of this Agreement pursuant to Article IX, the Company shall, and shall cause the Company Subsidiaries and their respective Affiliates to, keep the Merger Corporation reasonably informed of the status and terms of, and material changes in, any such Acquisition Proposal. Prior to the Company’s receipt of the Company Stockholder Approvals, the Company shall promptly (and, in any event, within 24 hours), following a determination by the Board (acting upon the recommendation of the Special Committee) or the Special Committee that an Acquisition Proposal is a Superior Proposal to the extent the Board or the Special Committee is permitted to do so pursuant to this Section 7.04, notify the Merger Corporation of such determination in writing (and, for the avoidance of doubt, following the Company’s receipt of the Company Stockholder Approvals, the Company, the Board and the Special Committee shall have no right to make such a determination).
(d) Except as permitted by this Section 7.04, the Board and each committee of the Board (including the Special Committee) shall not, and shall not publicly propose to: (i) (A) withdraw or adversely qualify (or modify or amend in a manner adverse to the Merger Corporation) the Board Recommendation or the Special Committee Recommendation; (B) authorize, approve, adopt or recommend, or declare the advisability of, any Acquisition Proposal; or (C) take any action or make any recommendation or public statement in connection with any Acquisition Proposal that is a tender offer or exchange offer other than an unequivocal recommendation against such offer or a temporary “stop, look and listen” communication by the Board or the Special Committee of the type contemplated by Rule 14d-9(f) under the Exchange Act in which the Board, the Special Committee or the Company indicates that the Board Recommendation or the Special Committee Recommendation, as applicable, has not changed (any of the foregoing actions, an “Adverse Recommendation Change”), or (ii) cause or permit the Company or any of the Company Subsidiaries to enter into any Acquisition Agreement or otherwise resolve or agree to do so.
(e) Notwithstanding anything in this Agreement to the contrary, until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, if in response to an Acquisition Proposal made after the date of this Agreement that has not been withdrawn and that did not result from a material breach of this Section 7.04, the Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith (in each case, after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal is a Superior Proposal, then (i) the Board (acting upon the recommendation of the Special Committee) or the Special Committee may make an Adverse Recommendation Change or (ii) only in the case of such a determination by the Board (acting upon the recommendation of the Special Committee) or the Special Committee, the Company may terminate this Agreement pursuant to Section 9.01(e)(i) in order to enter into an Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 9.01(e)(i) unless the Company prior to, or concurrently with, such termination, pays, or causes to be paid, to the Merger Corporation the Company Termination Fee.
(f) Prior to effecting an Adverse Recommendation Change to the extent permitted by Section 7.04(e) with respect to a Superior Proposal or terminating this Agreement pursuant to Section 9.01(e)(i) in order to enter into an Acquisition Agreement with respect to a Superior Proposal to the extent permitted by Section 7.04(e) and Section 9.01(e)(i), (i) the Company shall notify the Merger Corporation in writing that the Board or the Special Committee intends to effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.01(e)(i), as applicable, (ii) the Company shall provide the Merger Corporation a summary of the material terms and conditions of such Superior Proposal (including the consideration offered therein and the identity of the Person or “group” making the Superior Proposal) and an unredacted copy of the Acquisition Agreement, (iii) if requested to do so by the Merger Corporation, for a period of four Business Days following delivery of such notice, the Company shall discuss and negotiate in good faith, and shall make its Representatives available to discuss and negotiate, with the Merger Corporation and its Representatives, any proposed modifications to the terms and conditions of this Agreement in such a manner that would obviate the need to effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.01(e)(i), as applicable, and (iv) no earlier than the end of such four Business Day period, the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall determine in good faith, after considering the terms of any proposed amendment or modification to this Agreement proposed by the Merger Corporation during such four Business Day period and in consultation with its outside legal counsel and financial advisors, that such Superior Proposal still constitutes a Superior Proposal (it being understood and agreed that any material changes to the financial or other material terms of a proposal that was previously the subject of a notice hereunder shall require a second notice to the Merger Corporation as provided above, but with respect to such second notice, references herein to a “four Business Day period” shall be deemed references to a “two Business Day period”; provided that such new notice shall in no event shorten the original four Business Day period).
(g) Notwithstanding anything in this Agreement to the contrary, until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, but subject to the Company’s and the Board’s and the Special Committee’s compliance with Section 7.04(h), the Board (acting upon the recommendation of the Special Committee) or the Special Committee may make an Adverse Recommendation Change in response to an Intervening Event if the Board (upon the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation with its outside legal counsel) that the failure to effect an Adverse Recommendation Change in response to such Intervening Event is reasonably likely to be inconsistent with the applicable directors’ fiduciary duties under applicable Law.
(h) Prior to effecting an Adverse Recommendation Change with respect to an Intervening Event, (i) the Company shall notify the Merger Corporation in writing that it intends to effect an Adverse Recommendation Change, describing in reasonable detail the reasons for such Adverse Recommendation Change and the material facts and circumstances relating to such Intervening Event, (ii) if requested to do so by the Merger Corporation, for a period of four Business Days following delivery of such notice, the Company shall discuss and negotiate in good faith, and shall make its Representatives available to discuss and negotiate, with the Merger Corporation’s Representatives any proposed modifications to the terms and conditions of this Agreement in such a manner that would obviate the need to effect such Adverse Recommendation Change and (iii) no earlier than the end of such four Business Day period, the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall determine, after considering the terms of any proposed amendment or modification to this Agreement agreed upon by the Merger Corporation during such four Business Day period and in consultation with its outside legal counsel, that the failure to effect an Adverse Recommendation Change would still be reasonably likely to be inconsistent with the applicable directors’ fiduciary duties under applicable Law.
(i) Nothing contained in this Agreement shall prevent the Company or the Board (acting upon the recommendation of the Special Committee) or the Special Committee from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or (ii) making a statement contemplated by Item 1012(a) of Regulation M-A under the Exchange Act or otherwise complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal. For the avoidance of doubt, a factually accurate public statement that only describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto shall not be deemed an Adverse Recommendation Change.
(j) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (TaskUs, Inc.), Merger Agreement (TaskUs, Inc.)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01Agreement, the Company shall notagrees that neither it nor any of the officers or directors shall, and that it shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct direct and use its best reasonable best efforts to cause the its officers, directors, employees, investment bankers, consultants, attorneys and other Representatives of each Acquired Company agents not to, directly or indirectly: (A) , take any action to solicit, initiate, seek encourage or knowingly encourage (including by way facilitate the making of furnishing non-public information relating to any Acquired Company) Acquisition Proposal or any inquiry, discussion, offer inquiry with respect thereto or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate engage in any discussions or negotiations withwith any person with respect thereto, or furnish disclose any non-public information relating to the Acquired Companies to, Company or afford access to the properties, books or records or officers of the Acquired Companies toCompany to any person that has made any Acquisition Proposal; provided, any Third Partythat nothing contained in this Section 6.14 shall prevent the Company, in each caseafter providing prior notice thereof to Buyer that it is taking such action, with respect 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 could the Company Board determines in good faith is reasonably be expected likely to lead to a Superior Proposal, so long as (i) the Company has received prior to the date hereof an executed confidentiality agreement or prior to furnishing non-public information to, or entering into discussions or negotiations with, such person, the Company receives from such person an executed confidentiality agreement containing standard terms and conditions and (ii) the Company Board determines in good faith, based on such matters that it deems relevant, but in any event upon the advice of independent 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; provided, further, that nothing contained in this Agreement shall prevent the Company or its board of directors from complying with Rule 14e-2 or 14d-9 under the 1934 Act with regard to an Acquisition Proposal.
(b) The Company will (i) promptly (and in no event later than 48 hours after the receipt of any Acquisition Proposal) notify (which notice shall be provided in writing and shall identify the person making such Acquisition Proposal and set forth the material terms thereof) Buyer after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any person that may be considering making, or has made, an Acquisition Proposal, and (Cii) grant any waiver, amendment or release keep Buyer informed on a current basis of the status and content of any Third Party under discussions or negotiations with any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate third party regarding any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.Acquisition
Appears in 2 contracts
Sources: Merger Agreement (Tweeter Home Entertainment Group Inc), Merger Agreement (Sound Advice Inc)
No Solicitation. 5.3.1 Except as expressly permitted by and subject to this Section 6.025.3, during the period from and after the date of this Agreement until hereof, the earlier Company will, and will cause its Subsidiaries and their respective Representatives to, (x) promptly cease and terminate (or cause to be terminated) any discussions or negotiations with any Third Party and its Affiliates and Representatives that may be ongoing with respect to, or which may reasonably be expected to lead to, any Acquisition Proposal, (y) promptly request any such Third Party to promptly return or destroy all confidential information furnished by or on behalf of the Effective Time Company and its Subsidiaries in accordance with the Acceptable Confidentiality Agreements and (z) terminate access by any Third Party and its Affiliates and Representatives to any data room (virtual, online or otherwise) maintained by or on behalf of the Company and its Subsidiaries. Except as expressly permitted by and subject to this Section 5.3, from and after the date hereof, or, if earlier, until the termination of this Agreement in accordance with Section 8.01Article 7, the Company shall will not, and shall (i) will cause its Subsidiaries and the its and their respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: , (A) initiate, solicit, initiate, seek knowingly facilitate or knowingly encourage (including by way the submission of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter intoengage in, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead toto the submission of any Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions), (C) provide any non-public information to any Person in connection with any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (CD) grant any waiverwaive, amendment terminate, modify, fail to enforce or release of any Third Party Person (other than Parent, Merger Sub and their respective Affiliates and Representatives) under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of (other than a limited waiver under any Third Party confidentiality or similar agreement in existence prior to the date hereof, to the extent such agreement or obligation prohibits necessary to allow for a confidential proposal being Acquisition Proposal to be made to the Company), or exempt any person (other than Parent, Merger Sub and their respective Affiliates and Representatives) from the restrictions under Takeover Laws, (E) enter into any acquisition agreement with respect to any Acquisition Proposal, or (F) formally propose, resolve or agree to do any of the foregoing. Without limiting the foregoing, it is agreed that any breach of the restrictions set forth in this Section 5.3.1 by any Representative or Affiliate of the Company Board or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Special Committee Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.3.1 by the Company.
5.3.2 Except as expressly permitted by this Section 5.3, from and after the date hereof until the receipt of the Company Stockholder Approval, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof will (acting upon i) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal or any offer or proposal that would reasonably be expected to lead to an Acquisition Proposal, (ii) withdraw, change or qualify or propose to 89887722_19 150326672.16 publicly withdraw, qualify or modify, in a manner adverse to Parent or Merger Sub, the recommendation Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, letter of intent or other similar agreement relating to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal, (iv) fail to include the Company Board Recommendation in the Proxy Statement, (v) fail to publicly recommend against any tender offer or exchange offer for the equity securities of the Special CommitteeCompany, or (vi) formally resolve or agree to do or publicly propose to do any of the foregoing (any action set forth in the foregoing clauses (i) to (v) of this sentence, a “Change of Board Recommendation”).
5.3.3 Notwithstanding anything to the contrary contained in Sections 5.3.1 and 5.3.2, if at any time following the date hereof and prior to the receipt of the Company Stockholder Approval (i) the Company has determined received, after the date hereof, a bona fide written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not otherwise result from a breach or, in accordance with the last sentence of Section 5.3.1, deemed breach, of Section 5.3.1 (other than a breach that is immaterial and unintentional) and (iii) the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal advisorscounsel, based on information then available, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then subject to providing prior written notice of its decision to take such action to Parent as promptly as practicable after such determination was reached (and in any event, no later than 24 hours thereafter) and compliance with Section 5.3.4, the Company may (1) furnish information with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal, its representatives and potential sources of financing pursuant to one or more Acceptable Confidentiality Agreements and (2) participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal; provided, that any information concerning the Company or its Subsidiaries to be provided or made available to any Third Party will, to the extent not previously provided or made available to Parent or Merger Sub, be provided or made available to Parent or Merger Sub concurrently with or promptly following such time as it is provided or made available to such Third Party.
5.3.4 From and after the date hereof, the Company will promptly (and in any event within 24 hours) notify Parent in the event that the Company receives any Acquisition Proposal. The Company will notify Parent promptly (and in any event within 24 hours) of a summary of the material terms of the Acquisition Proposal, including the identity of the Person who submitted such Acquisition Proposal. Without limiting the foregoing, the Company will promptly (and in any event within 24 hours after such determination) advise Parent if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal and thereafter will keep Parent reasonably informed of the status and material terms of any such proposals and any material changes to the status of any such discussions or negotiations, and provide to Parent as soon as practicable after receipt or delivery thereof with un-redacted copies of all transaction documents (if any) and copies of any other documents evidencing or specifying the terms or conditions of such Acquisition Proposal.
5.3.5 Notwithstanding anything to the contrary contained in Sections 5.3.1 or 5.3.2, if the Company has received after the date hereof a bona fide written Acquisition Proposal that the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, constitutes a Superior Proposal, and such Acquisition Proposal did not result 89887722_19 150326672.16 from a breach or, in accordance with the last sentence of Section 5.3.1, deemed breach, of Section 5.3.1 (other than a breach that is immaterial and unintentional), the Company Board may at any time prior to the receipt of the Company Stockholder Approval, (i) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (ii) terminate this Agreement pursuant to Section 7.1.6, in either case if the Company Board determines in good faith after consultation with its outside counsel and financial advisors that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Lawto the stockholders of the Company and subject to the requirements of this Section 5.3.5. The Company may not effect a Change of Board Recommendation pursuant to this Section 5.3.5 or terminate this Agreement pursuant to Section 7.1.6 unless the Company has provided to Parent at least three Business Days’ prior written notice (the “Notice Period”) of the Company’s intention to take such action, which notice will include an unredacted copy of such Superior Proposal and all related documentation (Dincluding the definitive transaction agreement (and related schedules and exhibits) approveto be entered into by the Company in respect of such Superior Proposal and, endorseif applicable and to the extent received by the Company, recommend or enter intofinancing documentation), or publicly propose and:
5.3.5.1. during the Notice Period, if requested by Parent, the Company will have, and will have caused its legal and financial advisors to approvehave, endorseengaged in good faith negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent and intended to cause the relevant Acquisition Proposal to no longer constitute a Superior Proposal; and
5.3.5.2. the Company Board will have considered in good faith any adjustments and/or proposed amendments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., recommend or enter intoNew York City time, on the last day of the Notice Period and have determined in good faith, after consultation with its financial advisors and outside counsel, that the Superior Proposal would continue to constitute a Superior Proposal and that the failure to take such action would continue to be inconsistent with its fiduciary duties to the stockholders of the Company if such Proposed Changed Terms were to be given effect. In the event of any letter material revisions to such Superior Proposal offered in writing by the party making such Superior Proposal (including any change in purchase price), the Company must deliver a new written notice to Parent and must again comply with the requirements of intentthis Section 5.3.5 with respect to such new written notice, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract except that the Notice Period will be two Business Days with respect to any Acquisition Proposal other than such new written notice.
5.3.6 Notwithstanding anything to the contrary contained in this Section 5.3, the Company Board may at any time prior to the receipt of the Company Stockholder Approval effect a Change of Board Recommendation if (i) the Company Board determines in good faith, after consultation its financial advisors and outside counsel, that an Acceptable Confidentiality Intervening Event has occurred and is continuing and (ii) the Company Board determines in good faith, after consultation with outside counsel, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would be inconsistent with its fiduciary duties to the 89887722_19 150326672.16 stockholders of the Company, but such Change of Board Recommendation will not occur until a time that is after the fourth Business Day following Parent’s receipt of written notice from the Company advising Parent of the material information and facts relating to such Intervening Event and stating that it intends to make a Change of Board Recommendation and provided that (A) during such four-Business Day period the Company has negotiated in good faith with Parent to the extent Parent wishes to negotiate to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to proceed with the Company Board Recommendation and (B) at the end of such four-Business Day period, the Company Board maintains its determination described in accordance with Section 6.02(cthis clause (ii) (an “Alternative Acquisition after taking into account any adjustments offered in writing by Parent to the material terms and conditions of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (SMTC Corp), Merger Agreement (SMTC Corp)
No Solicitation. Except as permitted by (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to an Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to an Acquisition Proposal and (iii) cooperating with, assisting in, participating in, facilitating or encouraging an Acquisition Proposal and, if applicable, shall use reasonable best efforts to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Section 6.02, during the period from Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with Section 8.01ARTICLE 10, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its Representatives to (and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company such Persons not to), directly or indirectly: , (A) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating which has not been previously publicly disseminated), or take any other action designed to facilitate, any Acquired Company) inquiry or the making or submission of any inquiry, discussionproposal, indication of interest or offer or request that which constitutes, or could would reasonably be expected to lead to, an Acquisition Proposal, (B) subject to Section 6.02(b), approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal, (C) subject to Section 6.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or a Superior Proposal (each an “Alternative Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish regarding any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, or (CE) grant agree to do any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing; provided, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party however, if, prior to the extent such agreement or obligation prohibits Acceptance Time, following the receipt of a confidential proposal being made to bona fide written Acquisition Proposal that the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its the Company’s outside financial advisors and outside legal advisorscounsel, is or could reasonably be expected to lead to a Superior Proposal and that was unsolicited and made after the date of this Agreement in circumstances not otherwise involving a breach of this Agreement, the Company may, in response to such Acquisition Proposal, and subject to compliance with Section 6.02(b), furnish information with respect to the Company to the Person making such Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Acquisition Proposal (an “Acceptable Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 6.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person (including with respect to any “standstill” terms; provided, that such “standstill” terms need not restrict a Person from making proposals to the Company (including the Company Board) in respect of an Acquisition Proposal) than those contained in the Non-Disclosure Agreement as in effect immediately prior to the execution of this Agreement, and (2) promptly (but in any event within 24 hours) following 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 so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the Acceptance Time, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Acquisition Proposal that was not solicited in violation of this Agreement is made to the Company by a Third Party and such Acquisition Proposal is not withdrawn or (B) there has been an Intervening Event; (II) in the case of an Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Acquisition Agreement unless:
(i) the Company Board provides Parent at least four (4) Business Days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Superior Proposal that is specified in Section 6.02(b), as well as a copy of such Acquisition Proposal and any related Alternative Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Intervening Event;
(ii) during the four (4) Business Days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 6.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Superior Proposal or Intervening Event, as applicable; provided, that, for the sake of clarity, nothing in this clause (ii) shall in any way obligate the Company Board to refrain from making a Company Adverse Recommendation Change and, if applicable, authorizing the Company to enter into any Alternative Acquisition Agreement, in accordance with the terms of this Agreement; and
(iii) at the end of the four (4) Business Day period described in the foregoing clause (i), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent), that, as applicable (A) the Acquisition Proposal continues to be a Superior Proposal or (B) the Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with its the fiduciary duties owed by the Company Board to the stockholders of the Company under Applicable applicable Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.02, and the Company shall promptly (Dbut in any event within 24 hours of occurrence) approvenotify Parent of any such new Acquisition Proposal and the Parties shall comply with the provisions of this Section 6.02(b) with respect thereto; provided, endorsehowever, recommend or enter intothat the “matching period” set forth above shall in such circumstance expire on the later of two (2) Business Days after the Company Board provides written notice of such new Acquisition Proposal to Parent and the end of the original four (4) Business Day period described in clause (ii) above; provided, or publicly propose to approvefurther, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract the event there is a Company Adverse Recommendation Change made in compliance with this Section 6.02(b) with respect to any a Superior Proposal, the Company shall only enter into an Alternative Acquisition Proposal other than an Acceptable Confidentiality Agreement with respect thereto by terminating this Agreement in accordance with Section 6.02(c10.01(g).
(c) (an “Alternative Acquisition Agreement”); (E) take any action In addition to exempt any Third Party from the restrictions on “business combinations” contained obligations of the Company and Parent set forth in Section 203 6.02(a) and Section 6.02(b), the Company shall promptly (and in any event within 24 hours) advise Parent writing of any inquiries, proposals or offers with respect to an Acquisition Proposal that are received by, or any non-public information with regard to such Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the DGCL Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis (and, in any event, within 24 hours) of the status of any discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any other applicable Takeover Statute change to the scope or otherwise cause such restrictions not to apply material terms or (F) resolveconditions thereof, agreeand including copies of any written inquiries, authorize proposals or commit to do any of the foregoingoffers, including proposed agreements and modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Mitel Networks Corp), Merger Agreement (Mavenir Systems Inc)
No Solicitation. Except as permitted by this Section 6.02, during (a) Until the period from Closing Time or the date of termination of this Agreement until pursuant to the earlier provisions of Section 9.1 hereof, as the case may be, Lanacom will not (nor will Lanacom permit any of Lanacom's officers, directors, agents, representatives or affiliates to) directly or indirectly, take any of the Effective following actions with any party other than BackWeb Parent or its designees: (i) solicit, conduct discussions with or engage in negotiations with any person, relating to the possible acquisition by any person other than BackWeb Parent or Lanacom of any material portion of the business of Lanacom or its Subsidiaries (whether by way of reorganization, merger, purchase of capital stock, purchase of assets or otherwise) (an "Alternative Acquisition") or of any portion of the capital stock or assets of Lanacom or its Subsidiaries (an "Equity Transaction"), (ii) provide information with respect to it to any person, other than BackWeb Parent, relating to or in connection with an Alternative Acquisition or Equity Transaction, (iii) enter into an agreement with any person, other than BackWeb Parent, providing for an Alternative Acquisition or Equity Transaction or (iv) make or authorize any statement, recommendation or solicitation in support of an Alternative Acquisition or Equity Transaction.
(b) If, prior to the Closing Time or the termination of this Agreement in accordance with Section 8.01Agreement, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly Lanacom receives any bona fide offer or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information proposal relating to any Acquired Company) of the above, Lanacom shall immediately notify BackWeb Parent thereof, including information as to the identity of the offeror or the party making any inquiry, discussion, such offer or request proposal and the specific terms of such offer or proposal, as the case may be; provided, however, that constitutes, or could reasonably Lanacom shall not be expected required to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release notify BackWeb Parent of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding contacts with parties who have previously made offers to Lanacom where such parties repeat such previously made offers, Lanacom declines such previously made offers, and the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingparties have no further contact.
Appears in 2 contracts
Sources: Agreement and Plan of Acquisition (Backweb Technologies LTD), Agreement and Plan of Acquisition (Backweb Technologies LTD)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of Unless and until this Agreement until shall have been properly terminated by either party pursuant to Section 8.01 hereof, neither the earlier Seller nor any of the Effective Time its subsidiaries or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and Affiliates shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and Seller shall use its all reasonable best efforts to cause the other Representatives of each Acquired Company its Representatives, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly: (A) , encourage, solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating or, subject to the Acquired Companies to, or afford access to the books or records or officers fiduciary obligations of the Acquired Companies Seller's Board of Directors (as determined in good faith and as advised in writing by outside counsel), provide any information to, any Third Partycorporation, partnership, person or other entity or group (other than the Buyer and its affiliates or Representatives) concerning any merger, tender offer, sale of substantial assets, sale of shares of capital stock or debt securities or similar transaction involving the Seller (an "ACQUISITION TRANSACTION"); PROVIDED, that in each caseaccordance with the fiduciary obligations of the Seller's Board of Directors as determined in good faith and as advised in writing by outside counsel, the Seller may participate in discussions in the event that the Seller, its 57 -57- Affiliates or its Representatives did not solicit, encourage or initiate such discussions with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding Transactions. Notwithstanding the foregoing, nothing contained in this Section 5.03 shall prohibit the Company shall be permitted to grant a waiver Seller or its Board of or terminate any “standstill” or similar agreement or obligation of any Third Party Directors from taking and disclosing to the extent Seller's stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making such agreement or obligation prohibits a confidential proposal being made disclosure to the Company Board or Seller's stockholders which, in the Special Committee if the Company Board (acting upon the recommendation judgment of the Special Committee) has Board of Directors as determined in good faithfaith and as advised in writing by outside counsel, after consultation with may be required under applicable law. The Seller will immediately communicate to the Buyer the terms of any proposal, discussion, negotiation or inquiry relating to an Acquisition Transaction and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction (which shall mean that any such communication shall be delivered no less promptly than by telephone within 24 hours of the Seller's receipt of any such proposal or inquiry) or its outside financial and outside legal advisorsreceipt of any request for information from the Federal Reserve Board, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter intothe DOJ, or publicly propose to approve, endorse, recommend any other governmental agency or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract authority with respect to any a proposed Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingTransaction.
Appears in 2 contracts
Sources: Affiliation Agreement and Plan of Reorganization (Ust Corp /Ma/), Affiliation Agreement (Ust Corp /Ma/)
No Solicitation. Except as permitted by this Section 6.02(a) The Company agrees that, during the period from the date of this Agreement until the earlier of prior to the Effective Time or the termination of this Agreement in accordance with Section 8.01Time, the Company it shall not, and shall (i) cause not authorize or permit any Company Subsidiaries or any of its Subsidiaries and or the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the Subsidiaries' directors, officers, employees, investment bankers, attorneys or other Representatives of each Acquired Company not toagents or representatives, directly or indirectly: (A) , to solicit, initiate, seek initiate or knowingly encourage (including by way any inquiries or the making of furnishing non-public any proposal or provide any information relating about the Company or the Company Subsidiaries with respect to any Acquired Companymerger, consolidation or other business combination involving the Company or the Company Subsidiaries or their respective assets or capital stock (a "Takeover Proposal") any inquiryor negotiate, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue explore or otherwise participate engage in discussions with any discussions person (other than Merger Sub or negotiations withits directors, officers, employees, agents and representatives) with respect to any Takeover Proposal or furnish enter into any non-public information relating agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Acquired Companies toMerger or any other transactions contemplated by this Agreement; provided, or afford access to however, that if the books or records or officers Board of Directors of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and outside legal advisorscounsel, that failure 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, in response to any Superior Proposal (as defined below), which proposal was not solicited by it and which did not otherwise result from a breach of this Section 5.7, and subject to providing prior written notice of its decision to take such action to Merger Sub and compliance with the other requirements of this Section 5.7, (i) furnish information with respect to the Company and the Company Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement no less favorable to the Company than the confidentiality agreement previously entered into by the Company and Merger Sub (as determined in good faith by the Company based on the advice of its outside counsel) and (ii) participate in discussions or negotiations regarding such Superior Proposal.
(b) Except as expressly permitted by this Agreement, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Merger Sub, the approval or recommendation by the Board of Directors of the Company or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any Acquisition Agreement.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.7, the Company shall promptly advise Merger Sub orally and in writing of any request for information or any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal (and any amendments or proposed amendments thereto) and the identity of the person making such request or Takeover Proposal.
(d) Nothing contained in this Section 5.7 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with outside counsel and based as to legal matters on the written advice of the Company's independent legal counsel, failure so to disclose would be inconsistent with its fiduciary duties obligations under Applicable Lawapplicable law; provided, however, that, except as contemplated by clause (Db) approveof this Section 5.7, endorse, recommend neither the Company nor the Board of Directors of the Company nor any committee thereof shall withdraw or enter intomodify, or propose publicly propose to approvewithdraw or modify, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract its position with respect to any Acquisition Proposal other than an Acceptable Confidentiality this Agreement in accordance with Section 6.02(cor the Merger or approve or recommend, or propose publicly to approve or recommend, a Takeover Proposal.
(e) (an “Alternative Acquisition For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 2 contracts
Sources: Merger Agreement (Green William S), Merger Agreement (Parthanon Investors Lp)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time Each Stockholder agrees that he or the termination of this Agreement in accordance with Section 8.01, the Company shall it will not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use his or its reasonable best efforts to cause the other his or its Representatives of each Acquired Company not to, directly or indirectly: indirectly through another Person, (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way encourage, the submission of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer Acquisition Proposal or request that constitutes, the making or could reasonably be expected to lead to, an Acquisition Proposalconsummation thereto, (Bii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information about Hydrocarbon in connection with, or furnish otherwise cooperate in any way with, any Acquisition Proposal, (iii) make or participate in, directly or indirectly, a "solicitation" of "proxies" (as such terms are used in the rules of the U.S. Securities and Exchange Commission) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Common Stock in connection with any vote or other action on any matter, other than to recommend that stockholders of Hydrocarbon vote in favor of the adoption of the Redemption Charter Amendment and the Merger Agreement and as otherwise expressly provided for in this Agreement, or (iv) agree or publicly propose to do any of the foregoing. Notwithstanding anything to the contrary in this Section 4.3, nothing contained in this Agreement shall prohibit a Stockholder from furnishing any information to, or entering into or participating in discussions or negotiations with, any person (that is not an Affiliate of such Stockholder) that makes a written Acquisition Proposal, not in breach of Section 6.6 of he Merger Agreement, pursuant to which such Stockholder would be treated on an equivalent basis with Hydrocarbon's other holders of Common Stock if (i) the Deal Committee determines that such Acquisition Proposal constitutes or is likely to result in a Superior Proposal and (ii) prior to Stockholder furnishing such non-public information relating to such person, Hydrocarbon receives from such person an executed confidentiality agreement no less restrictive than the Acquired Companies toConfidentiality Agreement and furnishes Energy Partners with any such information that has not previously been furnished. Each Stockholder hereby represents that, or afford access to the books or records or officers as of the Acquired Companies todate hereof, such Stockholder is not engaged in any Third Party, in each case, with respect to, discussions or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract negotiations with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance and shall use his or its reasonable best efforts to cause such Stockholder's Representatives to immediately cease and cause to be terminated all existing discussions or negotiations with Section 6.02(c) (an “Alternative any Person conducted heretofore with respect to any Acquisition Agreement”); (E) Proposal and request the prompt return or destruction of all confidential information previously furnished and will take any action commercially reasonable steps to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 inform his or its Representatives of the DGCL or any other applicable Takeover Statute or otherwise cause obligations undertaken by such restrictions not Stockholder pursuant to apply or (F) resolvethis Agreement, agree, authorize or commit to do any of the foregoingincluding this Section 4.3.
Appears in 2 contracts
Sources: Voting Agreement (Markwest Energy Partners L P), Voting Agreement (Markwest Hydrocarbon Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) Company shall not, and shall (i) cause its Subsidiaries subsidiaries not to, and the respective directors and officers of each Acquired Company and (ii) instruct and shall use its reasonable best efforts to cause the other Representatives of each Acquired Company its or their respective officers, directors, employees, its representatives or agents not to, and shall not resolve or propose to, directly or indirectly: , (Ai) knowingly encourage, solicit, initiateparticipate in, seek knowingly facilitate or knowingly encourage initiate discussions, negotiations, inquiries, proposals or offers (including by way of furnishing including, without limitation, any proposal or offer to its stockholders) with or from or provide any non-public information relating to any Acquired Companyperson or group (other than Purchaser and Merger Sub or any designees of Purchaser and Merger Sub) concerning any Third Party Acquisition or any inquiry, discussionproposal or offer reasonably likely to lead to a Third Party Acquisition or (ii) waive, offer terminate, modify or request fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Purchaser and Merger Sub; provided, however, that, prior to the Company Stockholder Approval, if Company receives a bona fide unsolicited written proposal for a Third Party Acquisition that constitutes, (I) the Board of Directors of Company determines in its good faith judgment (after receiving the advice of outside legal counsel and a financial adviser of nationally recognized reputation) is or could reasonably be expected to lead result in a Superior Proposal and (II) was made after the date hereof and did not result from a breach of this Section 6.10, Company and its representatives may, subject to compliance with this Section 6.10, provide information with respect to Company to, an Acquisition Proposaland engage in any negotiations or discussions with, such Third Party, but only if (1) in the case of provision of information, prior to such provision of information (A) such Third Party shall have entered into a confidentiality agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement (and containing additional provisions that expressly permit Company to comply with the provisions of this Section 6.10); (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating provided to such Third Party shall have been previously provided to Purchaser or shall be provided to Purchaser prior to or substantially concurrently with the Acquired Companies to, or afford access time as it is provided to the books or records or officers of the Acquired Companies to, any such Third Party, ; and (2) the Board of Directors of Company determines in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in its good faithfaith judgment, after consultation with its outside financial and based upon the advice of outside legal advisorscounsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Lawapplicable law. Company, its subsidiaries and their respective officers, directors, employees, representatives and agents shall immediately cease and cause to be terminated any discussions or negotiations with any persons with respect to any Third Party Acquisition or any proposal, inquiry or offer reasonably likely to lead to a Third Party Acquisition and Company shall promptly request the prompt return or destruction of all confidential information previously furnished
(Db) approveExcept as set forth in this Section 6.10(b), endorsethe Board of Directors of Company shall not (i) withdraw, recommend change, qualify or enter into, modify or publicly propose to withdraw, change, qualify or modify the Company Recommendation, (ii) take any other action or make any public statement in connection with the Company Recommendation or the Merger that is inconsistent with the Company Recommendation, (iii) fail to recommend against acceptance of any tender offer or exchange offer for Company Common Stock within ten business days after the commencement of such offer, (iv) approve, endorseresolve, recommend adopt or enter intorecommend, or propose publicly to approve, resolve, adopt or recommend, any Third Party Acquisition (any action described in clauses (i), (ii) or (iii) being referred to as a “Change in Company Recommendation”) or (iv) cause Company to enter into any agreement, letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract with respect agreement, constituting or related to, or which is reasonably likely to lead to, a Third Party Acquisition or any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with proposal or offer for a Third Party Acquisition(excluding a confidentiality agreement pursuant to Section 6.02(c6.10(a)) (each, an “Alternative Acquisition Agreement”). Notwithstanding the foregoing, at any time prior to the Company Stockholder Approval, if the Board of Directors of Company determines in its good faith judgment, after consultation with and based upon the advice of outside legal counsel, that, because of (i) the receipt of a written proposal for a Third Party Acquisition that it determines in good faith constitutes a Superior Proposal or (ii) the occurrence of an Intervening Event, the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable law (after taking into account all adjustments to the terms of this Agreement that may be offered by Purchaser pursuant to this Section 6.10(b)), the Board of Directors of Company may make a Change in Company Recommendation and, in the event of a Superior Proposal, recommend such Superior Proposal (provided, that such Superior Proposal did not result from a breach of this Section 6.10), but only (i) after the fifth business day following Purchaser’s receipt of written notice from Company advising Purchaser that the Board of Directors of Company has received a Superior Proposal or that an Intervening Event has occurred, specifying, as applicable, (A) the terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and contemporaneously furnishing a copy of the relevant Alternative Acquisition Agreement and any other transaction documents and any other correspondence containing terms and conditions with respect to such Superior Proposal (it being understood and agreed that any amendment to the terms or conditions of such Superior Proposal shall require a new written notice by Company and a new five business day period) or (B) the nature of the Intervening Event in reasonable detail and (ii) after causing its legal and financial advisors to negotiate with Purchaser in good faith during such five business day period (or any additional five business day period) to make such adjustments to the terms and conditions of this Agreement as would enable the Board of Directors of Company to proceed with the Company Recommendation and not make a Change in Company Recommendation; (E) provided, however, Company shall not be entitled to enter into any Alternative Acquisition Agreement or resolve, agree or publicly propose to take any such action unless and until the Company Stockholder Meeting (including any postponements and adjournments) has been held and this Agreement is terminated by its terms pursuant to exempt Section 8.1 and Company has paid all amounts due to Purchaser pursuant to Section 8.3.
(c) Nothing contained in this Agreement shall prevent Company or the Board of Directors of Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act, (ii) making any legally required disclosure to the Company’s stockholders with regard to the transactions contemplated by this Agreement or a Third Party Acquisition (provided that neither Company nor its Board of Directors may recommend any Third Party from the restrictions on Acquisition unless expressly permitted by this Section 6.10) or (iii) issuing a “business combinationsstop, look and listen” contained in Section 203 disclosure or similar communication of the DGCL type contemplated by Rule 14d-9(f) under the Exchange Act.
(d) For the purposes of this Agreement, “Third Party Acquisition” means: (i) the acquisition, in one or a series of related transactions, of Company or any of its subsidiaries representing more than 15% of the consolidated total assets (including equity securities of the subsidiaries of Company) of Company and its subsidiaries taken as a whole, by merger, tender offer, exchange offer, consolidation, business combination or otherwise by any person or group other than Purchaser, Merger Sub or any affiliate thereof (a “Third Party”), (ii) the acquisition by a Third Party in any one or a series of transactions (including the acquisition of stock in any subsidiary of Company) of assets or businesses of Company or its subsidiaries, including pursuant to a joint venture or partnership, representing more than 15% of the consolidated total assets (including equity securities of the subsidiaries of Company) of Company and its subsidiaries taken as a whole or (iii) the acquisition by a Third Party in one or a series of related transactions in any manner (including by merger, tender offer, exchange offer, consolidation, business combination or otherwise) of beneficial ownership of 15% or more of the outstanding Company Common Stock or any other applicable Takeover Statute class of capital stock or otherwise cause such restrictions not to apply voting power of Company or (F) resolve, agree, authorize or commit to do any resulting parent company of the foregoingCompany.
Appears in 2 contracts
Sources: Merger Agreement (SWS Group Inc), Merger Agreement (Hilltop Holdings Inc.)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01(a) The Company, the Company Subsidiaries and their respective directors and officers shall not, and the Company shall direct its and the Company Subsidiaries’ other Representatives not to, (i) cause its Subsidiaries and directly or indirectly solicit, initiate or knowingly encourage the respective directors and officers submission of each Acquired any Company and Takeover Proposal, (ii) instruct and use its reasonable best efforts enter into any agreement or understanding with respect to cause the other Representatives of each Acquired any Company not Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way take any other action to facilitate the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request proposal that constitutes, or could reasonably be expected to lead to, an Acquisition any Company Takeover Proposal. The Company shall, and shall cause its Representatives to, immediately (Bi) enter intocease all discussions and negotiations regarding any inquiry, continue proposal or otherwise participate in any discussions or negotiations withoffer pending on the date of this Agreement that constitutes, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition a Company Takeover Proposal, (Cii) grant request the prompt return or destruction of all confidential information previously furnished to any waiver, amendment Person within the last six months for the purposes of evaluating a possible Company Takeover Proposal and (iii) terminate access to any physical or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the electronic data rooms relating to a possible Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party Takeover Proposal. Notwithstanding anything to the extent such agreement contrary contained in the foregoing or obligation prohibits any other provision of this Agreement, prior to the Offer Closing Date, in response to a confidential proposal being made to Company Takeover Proposal that did not result from a material breach of this Section 5.03(a) and that the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines, in good faith, after consultation with outside counsel and a financial advisor, constitutes or could reasonably be expected to lead to a Superior Company Proposal (a “Qualifying Company Takeover Proposal”), the Company may (A) furnish information with respect to the Company to the Person making such Qualifying Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement so long as the Company also concurrently provides Parent, in accordance with the terms of the Confidentiality Agreement, any material non-public information with respect to the Company and/or any Company Subsidiary furnished to such other Person which was not previously furnished 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; provided that the Company may only take the actions described in clauses (A) or (B) above, if the Company Board determines, in good faith, after consultation with outside financial and outside legal advisorscounsel, that the failure to take any such action would be inconsistent with its fiduciary duties under Applicable applicable Law.
(b) Neither the Company Board nor any committee thereof shall (A) withdraw or modify in a manner adverse to Parent or Merger Sub, or propose publicly to withdraw or modify in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or (DB) approveapprove or recommend, endorseor propose publicly to approve or recommend, recommend any Company Takeover Proposal or resolve or agree to take any such action or (C) fail to include the Company Board Recommendation in the Schedule 14D-9 (any action described in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (ii) approve or enter into, or publicly propose to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, option agreement, merger agreement, joint venture agreement, partnership agreement or other Contract with respect to agreement providing for any Acquisition Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.02(c5.03(a)), or resolve, agree or publicly propose to take any such action. Notwithstanding anything to contrary in the foregoing or any other provision of this Agreement, (x) the Company Board may, in response to an Intervening Event, take or fail to take any of the actions specified in clause (A) of the definition of Adverse Recommendation Change (an “Alternative Acquisition AgreementIntervening Event Adverse Recommendation Change”) if the Company Board determines, in good faith, after consultation with outside counsel, that the failure to take any such action would be inconsistent with its fiduciary duties under applicable Law and (y) if the Company Board receives a Superior Company Proposal, the Company may terminate this Agreement pursuant to Section 8.01(g) in accordance with Section 8.04(b); provided that, prior to so making an Intervening Event Adverse Recommendation Change or so terminating this Agreement, (E1) the Company Board shall have given Parent at least four calendar days’ prior written notice of its intention to take any such action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 and a description of the DGCL or any other applicable Takeover Statute or otherwise reasons for taking such action (which notice, in respect of a Superior Company Proposal, shall specify the identity of the Person who made such Superior Company Proposal and all of the material terms and conditions of such Superior Company Proposal and attach the most current version of the relevant transaction agreement), (2) the Company shall have negotiated, and shall have caused its Representatives to negotiate in good faith, with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to revise the terms of this Agreement in such a manner that would eliminate the need for taking such action (and in respect of a Superior Company Proposal, would cause such restrictions not Superior Company Proposal to apply no longer constitute a Superior Company Proposal), (3) following the end of such notice period, the Company Board shall have considered in good faith any revisions to this Agreement offered in writing by Parent in a manner that would form a binding contract if accepted by the Company, and shall have determined in good faith, after consultation with outside counsel, that failure to effect such Company Intervening Event Adverse Recommendation Change or to terminate this Agreement to accept a Superior Company Proposal would be inconsistent with its fiduciary duties under applicable Law and, with respect to a Superior Company Proposal, that such Superior Company Proposal continues to constitute a Superior Company Proposal and (F4) resolve, agree, authorize or commit in the event of any change to do any of the foregoingfinancial or other material terms (including the form, amount and timing of payment of consideration) of such Superior Company Proposal, the Company shall, in each case, deliver to Parent an additional notice consistent with that described in clause (1) of this proviso and a renewed notice period under clause (1) of this proviso shall commence (except that the four-calendar-day notice period referred to in clause (1) of this proviso shall instead be equal to three calendar days) during which time the Company shall be required to comply with the requirements of this Section 5.03(b) anew with respect to such additional notice, including clauses (1) through (4) of this proviso.
(c) Nothing contained in this Section 5.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders), including making any “stop-look-and-listen” communication to the stockholders of the Company, or (ii) making any disclosure to its stockholders if the Company Board determines, in good faith, after consultation with outside counsel, that the failure to take any such action would be inconsistent with its fiduciary duties under applicable Law; provided that this Section 5.03(c) shall not be deemed to affect whether any such action (other than a recommendation against a Company Takeover Proposal or a “stop-look-and-listen” communication by the Company Board pursuant to Rule 14d-9 promulgated under the Exchange Act) would otherwise constitute an Adverse Recommendation Change.
(d) In addition to the requirements set forth in paragraphs (a) and (b) of this Section 5.03, the Company shall, as promptly as practicable and in any event within one business day after receipt thereof, advise Parent orally and in writing of (i) any Company Takeover Proposal or any request for information or inquiry, proposal or offer that the Company reasonably believes could lead to or contemplates a Company Takeover Proposal and (ii) the terms and conditions of such Company Takeover Proposal or inquiry, proposal or offer (including any subsequent amendments or modifications thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry, proposal or offer. Commencing upon the provision of any notice referred to above, the Company and its Representatives shall keep Parent informed on a reasonably prompt basis as to the status and details of any such Company Takeover Proposal or inquiry, proposal or offer (and any subsequent amendments or modifications thereto). The Company agrees that in the event any Company Subsidiary, or any Representative of the Company or any Company Subsidiary, takes any action which, if taken by the Company would constitute a breach of this Section 5.03, the Company shall be deemed to be in breach of this Section 5.03.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Celator Pharmaceuticals Inc)
No Solicitation. (a) Except as permitted by set forth in this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.016.1, the Company and each of its Subsidiaries shall not, not and shall (i) cause its Subsidiaries and each of the respective directors and officers of each Acquired the Company or any of its Subsidiaries not to, and (ii) instruct shall not authorize and shall otherwise use its reasonable best efforts to cause the its or their employees, investment bankers, attorneys, accountants or other Representatives of each Acquired Company advisors, agents or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors, agents and representatives, collectively, “Representatives”) not to, directly or indirectly: :
(Ai) solicit, initiate, seek propose, knowingly encourage or knowingly encourage (including by way facilitate any inquiries or the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, proposal or offer or request that constitutes, or could reasonably be expected to lead to, an any Acquisition Proposal, including (A) approving any transaction under Section 203 of the DGCL and (B) approving any person becoming an “interested stockholder” under Section 203 of the DGCL; or
(ii) enter into, continue or otherwise participate in any communications, discussions or negotiations withregarding, furnish to any person any information or furnish any non-public information relating to the Acquired Companies data with respect to, assist or afford access to the books participate in any effort or records or officers of the Acquired Companies to, attempt by any Third Party, in each case, person with respect to, or that could reasonably be expected to lead tootherwise cooperate in any way with, an any Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding . Notwithstanding the foregoing, prior to the receipt of the Company shall be permitted Stockholder Approval (the “Specified Time”), the Company may, in response to grant a waiver bona fide, unsolicited written Acquisition Proposal made or received after the date of or terminate any “standstill” or similar agreement or obligation this Agreement that did not result from a breach by the Company of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to this Section 6.1, and where the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, faith after consultation with its outside counsel and independent financial advisor that such Acquisition Proposal is, or could reasonably likely to lead to, a Superior Proposal and outside legal advisors, that the failure to take such action would be inconsistent with its the fiduciary duties under Applicable Lawobligations of the Company Board, and not earlier than 24 hours after providing the notice contemplated by 6.1(c), (Dx) approvefurnish information or data with respect to the Company to the person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (y) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal. Without limiting the foregoing, endorseit is agreed that any violation of the restrictions set forth in this Section 6.1(a) by any Representative of the Company or any of its Subsidiaries, recommend whether or enter intonot such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 6.1(a) by the Company; provided that no breach of this Section 6.1(a) shall result solely from the Company or its Representatives informing any person of the restrictions of this Section 6.1.
(b) Neither the Company Board nor any committee thereof shall:
(i) except as set forth in this Section 6.1(b), withhold, withdraw, qualify or modify, or propose publicly propose to approvewithhold, endorsewithdraw, recommend qualify or modify, in a manner adverse to the Parent or the Merger Sub, the approval or recommendation by the Company Board or any such committee of this Agreement or the Merger;
(ii) cause or permit the Company to enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect similar agreement (an “Acquisition Agreement”) constituting or relating to, or that could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement a confidentiality agreement referred to in 6.1(a) entered into in the circumstances referred to in 6.1(a)); or
(iii) except as permitted by and in accordance with Section 6.02(c8.1(d)(ii), adopt, authorize, approve or recommend, or publicly propose to adopt, authorize, approve or recommend, any Acquisition Proposal. Notwithstanding the foregoing, provided the Company shall not have breached its obligations under Section 6.1(a), the Company Board may withdraw or modify the recommendation by the Company Board or any committee thereof of this Agreement or the Merger in circumstances where the Company Board has determined that a Superior Proposal is outstanding, if (A) (1) the Company Board determines in good faith, after consultation with its outside counsel and an independent financial advisor, that its fiduciary obligations require it to do so, but only at a time that is prior to the Specified Time and is after the third business day following the Parent’s receipt of written notice (an “Alternative Acquisition AgreementAdverse Recommendation Notice”) advising the Parent that the Company Board desires to withdraw or modify the recommendation (and the manner and timing in which it intends to do so) (such three business day period, the “Notice Period”), and (2) if requested by the Parent, the Company provides the Parent with a reasonable opportunity to make adjustments in the terms and conditions of this Agreement and negotiates in good faith with the Parent with respect thereto during the Notice Period, in each case as would enable the Company Board or committee thereof to proceed with its recommendation in favor of this Agreement or the Merger, and (B) (1) such withdrawal is due to the existence of a Superior Proposal, and the Company has complied with the requirements of Section 6.1(c), including specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal, and (2) if the Parent shall have, at or prior to the end of the Notice Period, made an offer that would, upon the Company’s acceptance, be binding on the Parent and Merger Sub, the Company Board determines in good faith (after consultation with its financial and legal advisors) that such Superior Proposal continues to be a Superior Proposal as defined below. Any material changes to the financial terms or any material change to other material terms of such Superior Proposal occurring prior to the Company Board’s effecting a Company Adverse Recommendation Change pursuant to this Section 6.1(b) shall require the Company to provide to the Parent a new Adverse Recommendation Notice and a new Notice Period and to comply with the requirements of this Section 6.1(b) with respect to each such Adverse Recommendation Notice. In addition, and notwithstanding the foregoing, at any time prior to the Specified Time, the Company Board may in response to a material development or change in circumstances occurring or arising after the date hereof that was neither known to the Company Board nor reasonably foreseeable as of or prior to the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), withdraw or modify its recommendation of this Agreement or the Merger if the Company Board has concluded in good faith, after consultation with its outside counsel and independent financial advisor, that, in light of such Intervening Event, the failure to take such action would be inconsistent with the fiduciary obligations of the Company Board; provided that, the Company Board shall not be entitled to take such action pursuant to this sentence unless the Company has (Ex) provided to the Parent at least three business days’ prior written notice advising the Parent that the Company Board intends to take such action and specifying the reasons therefor in reasonable detail and (y) during such three business day period, if requested by the Parent, engaged in good faith negotiations with the Parent to amend this Agreement in such a manner that obviates the need for taking such action as a result of the Intervening Event. Any Company Adverse Recommendation Change shall not change the approval of this Agreement or any action other approval of the Company Board, including in any respect that would have the effect of causing any state (including Delaware) corporate takeover statute or other similar statute to exempt be applicable to the transactions contemplated hereby or thereby, including the Merger.
(c) The Company shall as promptly as practicable (and in any Third Party event within 1 business day of receipt) advise the Parent orally, with written confirmation to follow, of any Acquisition Proposal or any request for nonpublic information in connection with any Acquisition Proposal, or any inquiry with respect to or that could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of any such Acquisition Proposal or inquiry and the identity of the person making any such Acquisition Proposal or inquiry. The Company shall (i) keep the Parent reasonably informed, on a current basis, of any material change in the status and details (including any material change to the terms, with any change in price being deemed to be material) of any such Acquisition Proposal or inquiry, (ii) provide to the Parent as promptly as practicable (and in any event within 1 business day) after receipt or delivery thereof copies of all material documents sent or provided to the Company or its Representatives, including those provided by electronic mail, from any third party in connection with any Acquisition Proposal or sent or provided by the restrictions on “business combinations” Company or its Representatives to any third party in connection with any Acquisition Proposal (except to the extent previously furnished to the Parent) and (iii) if the Parent shall make a counterproposal, consider in good faith the terms of such counterproposal. Contemporaneously with providing any information to a third party in connection with any such Superior Proposal or inquiry, the Company shall furnish a copy of such information to the Parent (except to the extent previously furnished to the Parent).
(d) Nothing contained in Section 203 6.1 shall be deemed to prohibit the Company from taking and disclosing to its stockholders a position with respect to a tender offer contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any required disclosure to the Company’s stockholders if, in the good faith judgment of the DGCL Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with its obligations under applicable law; provided, however, that, in no event shall the Company Board or any other applicable Takeover Statute committee thereof take, or otherwise agree or resolve to take, any action prohibited by Section 6.1(b).
(e) The Company shall, and shall cause such restrictions not its Subsidiaries and its and their Representatives to, cease immediately all communications, discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to apply or lead to, an Acquisition Proposal.
(Ff) resolve, agree, authorize or commit to do any For purposes of the foregoing.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Network Equipment Technologies Inc), Merger Agreement (Sonus Networks Inc)
No Solicitation. Except as permitted (a) The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by the Company, its Subsidiaries or any of their respective representatives with respect to any proposed, potential or contemplated Acquisition Transaction.
(b) From and after this Section 6.02date, during without the period from the date prior written consent of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01Parent, the Company shall will not, and shall (i) cause will not authorize or permit any of its Subsidiaries to, and the respective directors and officers of each Acquired Company and (ii) instruct and shall use its reasonable best efforts to cause the any of its or their respective officers, directors, employees, financial advisors, agents or other Representatives of each Acquired Company representatives not to, directly or indirectly: (A) , solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-information) or take any other action (other than public disclosure by the Company in the ordinary course of the Company's business consistent with the Company's past practices) to facilitate the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal from any Person, engage in any discussion or negotiations relating thereto or accept any Acquisition Proposal or enter into any contract or understanding requiring it to abandon, terminate or fail to consummate the Merger or any of the other transactions contemplated by this Agreement; provided that, at any time prior to the acceptance for payment of Company Common Shares pursuant to the Offer, the Company may, subject to compliance with this Section 5.3(b), furnish information relating to, and negotiate or otherwise engage in discussions with, any Person (a "Proposing Party") who (x) delivers a bona fide written Acquisition Proposal which was not solicited, initiated, encouraged or facilitated by the Company, directly or indirectly, after the date of this Agreement or otherwise resulted from a breach of this Section 5.3, and (y) enters into an appropriate confidentiality agreement with the Company (which agreement shall be no less favorable to any Acquired the Company than the Confidentiality Agreement and a copy of which will be delivered to Parent promptly after the execution thereof), if, but only if, the Board of Directors determines in good faith by a majority vote, (i) after consultation with, and receipt of advice from, its outside legal counsel, and taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the party making the proposal, that such proposal would, if consummated, result in a transaction that is more favorable to its shareholders (in their capacities as shareholders), from a financial point of view, than the transactions contemplated by this Agreement, and (ii) after consultation with the Company) any inquiry's independent financial advisors, discussion, offer or request that constitutes, or such proposal could reasonably be expected to be completed (a "Superior Transaction").
(c) The Company shall notify Parent orally and in writing (1) of any such offers or proposals (including, without limitation, the terms and conditions of any such offers or proposals), and any amendments or revisions thereto, (2) whether the Person making such offer or proposal has a class of equity securities that is publicly traded, and whether such Person is a Fortune 500 company, is listed on the New York Stock Exchange or is traded on The Nasdaq National Market, and (3) without requiring the Company to divulge information that reasonably could lead toParent to identify the Person making such offer or proposal, an such other information regarding the financial position of the Person making such offer or proposal and such other information as Parent reasonably may request relating to such Person's ability to finance and consummate the Acquisition Transaction so offered or proposed. The foregoing information shall be delivered to Parent as promptly as practicable following the receipt by the Company of such offer or proposal, and the Company shall keep Parent reasonably informed of the status and material terms of any such offer or proposal. For purposes of this Agreement, "Acquisition Proposal" shall mean, with respect to the Company, any proposal or offer from any Person (other than Parent or any of its Subsidiaries) relating to any (i) direct or indirect acquisition or purchase of a portion of the business of the Company or any of its Subsidiaries that generates 20% or more of the consolidated net revenues or constitutes 20% or more of the assets of the Company and its Subsidiaries, (ii) direct or indirect acquisition or purchase of 20% or more of any class of equity securities of the Company or any of its Subsidiaries whose business generates 20% or more of the consolidated net revenues or constitutes 20% or more of the assets of the Company and its Subsidiaries, (iii) tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the capital stock of the Company, or (iv) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose business generates 20% or more of the consolidated net revenues or constitutes 20% or more of the assets of the Company and its Subsidiaries. Each of the transactions referred to in clauses (i) - (iv) of the definition of Acquisition Proposal, (B) enter intoother than any such transaction to which Parent or any of its Subsidiaries is a party, continue or otherwise participate shall be deemed to exclude the Company's Subsidiary in any discussions or negotiations withAustralia and is referred to as an "Acquisition Transaction". For purposes of this Section 5.1(c), or furnish any non-public information relating "consolidated net revenues" shall refer to the Acquired Companies to, or afford access to the books or records or officers aggregate revenues of the Acquired Companies toCompany and its Subsidiaries for the 12-month period ending on the last day of the period covered by the most recent Form 10-K report of the Company or, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingif later, the Company shall be permitted to grant a waiver most recent Form 10-Q report of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or filed with the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingSEC.
Appears in 2 contracts
Sources: Merger Agreement (Minnesota Mining & Manufacturing Co), Merger Agreement (Minnesota Mining & Manufacturing Co)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From and after the date of this Agreement until the earlier of the Effective Time Closing or the termination of this Agreement in accordance with Section 8.01pursuant to its terms, the Company Seller shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: , through any officer, director, employee, financial advisor, representative or agent (Ai) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer inquiries or request proposals that constitutesconstitute, or could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, tender offer, sale of any item of the Mammography Intellectual Property, sale of 33% or more of its equity securities (excluding sales pursuant to existing Seller stock option plans or warrants outstanding as of the date hereof) or any similar transaction involving Seller, other than the transactions contemplated by this Agreement or any transaction involving the sale of any Permitted Assets (as defined in Section 5.1(d) below) (any of the foregoing inquiries or proposals being referred to in this Agreement as an “Acquisition Proposal”), (ii) engage in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal (except that Buyer expressly acknowledges that the Seller will not be in violation of its obligations under this Section 5.1(ii) if (X) the Seller’s financial advisor determines in good faith that the receipt of such supplemental information is absolutely necessary in order for Seller’s Board of Directors to clarify the terms of any ambiguous conditions to the consummation of any unsolicited Acquisition Proposal, Seller’s financial advisor may make one, and only one, written request that the party submitting an unsolicited Acquisition Proposal deliver a further written communication to the Seller for the sole purpose of clarifying ambiguities identified by the Seller’s financial advisor in such Acquisition Proposal, (BY) enter intoif Seller responds to an unsolicited Acquisition Proposal by providing copies of this Agreement, continue any of the Ancillary Agreements and any previously filed and publicly available Seller SEC Filings to the party making such unsolicited Acquisition Proposal (the “Interested Acquiror”), or otherwise participate (Z) if in response to a specific request made by the Interested Acquiror, the Seller’s financial advisor discloses the existence of the Loan Agreement, the amounts outstanding thereunder and the requirement contained in this Section 5.1 regarding the repayment of the amounts outstanding under the Loan Agreement, or engages in discussions with an Interested Acquiror for the sole purpose of clarifying the procedural requirements set forth in this Agreement to be followed by the Interested Acquiror, the Seller’s Board of Directors and the Seller’s stockholders in order to consummate the Acquiror’s Acquisition Proposal, all of the above being referred to as “Seller Permitted Response Actions”), or (iii) agree to or recommend any Acquisition Proposal; provided, however, that if Seller has not breached this Section 5.1, and has paid all amounts then due under the Loan Agreement, nothing contained in this Agreement shall prevent Seller or its Board of Directors, from:
(A) furnishing non-public information to, or entering into discussions or negotiations with, any person or furnish entity in connection with a bona fide written Acquisition Proposal by such person or entity or agreeing to (with the terms of any such agreement being subject to termination of this Agreement in accordance with Article VII) or recommending a bona fide written Acquisition Proposal to the stockholders of Seller, if and only to the extent that:
1) the Board of Directors of Seller believes in good faith (after consultation with its financial advisor) 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 Seller or its stockholders than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a “Superior Proposal”) and Seller’s Board of Directors determines in good faith after consultation with outside legal counsel that such action is necessary for such Board of Directors to comply with its fiduciary duties to stockholders under applicable law;
2) prior to furnishing such non-public information relating to the Acquired Companies to, or afford entering into discussions or negotiations with, such person or entity, such Board of Directors receives from such person or entity an executed confidentiality agreement with terms not materially more favorable to such party than those contained in the Confidentiality Agreement; and
3) prior to recommending a Superior Proposal, Seller shall provide Buyer with at least five business days’ prior notice of its proposal to do so, during which time Buyer may make, and in such event Seller shall consider, a counterproposal to such Superior Proposal, and, subject to the fiduciary duties of Seller’s Board of Directors, Seller shall itself and shall cause its financial and legal advisors to negotiate on its behalf with Buyer with respect to the terms and conditions of such counterproposal for a reasonable period of time (not to exceed 10 business days after the Seller’s receipt of Buyer’s counterproposal) given the terms and conditions of such counterproposal and such Superior Proposal; or
(B) complying with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal.
(b) Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore of the nature described in Section 5.1(a) and will use commercially reasonable efforts to obtain the return or destruction of any confidential information furnished to any such parties.
(c) Seller shall notify Buyer promptly, but in any event no more than 24 hours, after receipt by Seller (or its advisors) 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 Seller by any person or officers of the Acquired Companies to, any Third Party, in each case, with respect toentity that informs Seller that it is considering making, or that could reasonably be expected to lead tohas made, an Acquisition Proposal. Such notice shall be made in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. Seller shall continue to keep Buyer informed, on a current basis, of all material developments with respect to the status of any such discussions or negotiations and the terms being discussed or negotiated.
(d) Nothing in this Section 5.1 shall (i) permit Seller to terminate this Agreement (except as specifically provided in Section 7.1 hereof), (Cii) grant permit Seller to enter into any waiveragreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, amendment Seller shall not enter into any agreement with any person that provides for an Acquisition Proposal (other than a confidentiality agreement of the type referred to in Section 5.1(a) above)) or release (iii) affect any other obligation of any Third Party Seller under any standstill or confidentiality agreement; provided that notwithstanding the foregoingthis Agreement. For purposes of this Section 5.1, the Company term “Permitted Assets” shall be permitted to grant a waiver of or terminate mean any “standstill” or similar agreement or obligation of any Third Party assets used exclusively (i) in connection with the Seller’s RE&S Activities, (ii) in connection with fulfilling the Seller’s Service and Warranty Obligations (as defined in Section 5A.1 below) to the extent expressly permitted to be undertaken by the Seller after the Closing Date pursuant to the license granted under Section 5A.1(a)(iii), or (iii) in connection with providing Upgrades to the extent the provision of such Upgrades is expressly permitted to be undertaken by the Seller after the Closing Date pursuant to the license granted under Section 5A.1(a)(iv). The parties agree that to the extent the Permitted Assets include any item of Mammography Intellectual Property or any rights to use any item of Mammography Intellectual Property, the Seller will not enter into any such agreement or obligation prohibits a confidential proposal being made to dispose of any such Permitted Assets prior to the Company Board or Closing Date without the Special Committee if the Company Board (acting upon the recommendation prior written consent of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingBuyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Fischer Imaging Corp), Asset Purchase Agreement (Hologic Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01pursuant to Article 7, the Company and its Subsidiaries shall not, and each of them shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Company Representatives of each Acquired Company not to, directly or indirectly: , (Ai) solicit, initiateinitiate or encourage, seek or knowingly encourage (including take any other action intended to facilitate or with the reasonably foreseeable effect of facilitating, any inquiry in connection with, or the making of any proposal by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request party that constitutes, or could reasonably be expected to lead to, an Acquisition ProposalProposal (other than the Offer and the Merger), (Bii) enter into, continue or otherwise participate in any discussions or negotiations withwith any party (other than Parent, Purchaser or the Parent Representatives) regarding an Acquisition Proposal, (iii) furnish to any party (other than Parent, Purchaser or the Parent Representatives) any information intended to facilitate, or furnish any non-public information relating to with the Acquired Companies toreasonably foreseeable effect of facilitating, an Acquisition Proposal, or afford access to the books (iv) enter into any agreement, arrangement or records or officers of the Acquired Companies to, any Third Party, in each case, understanding with respect to, or that could reasonably be expected to lead tootherwise endorse, an any Acquisition Proposal; provided, (Chowever, that nothing contained in this Section 5.10(a) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to prohibit the Company Board or the Special Committee from furnishing information to, or engaging in discussions or negotiations with, any party that makes an Acquisition Proposal if (A) Purchaser has not yet accepted for payment and paid for Shares in the Offer, (B) the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, faith after consultation with its outside financial and outside legal advisorscounsel, that failure failing to take such action would be inconsistent with create a reasonable likelihood of a breach of its fiduciary duties to the Company’s shareholders under Applicable applicable Law, (C) the Acquisition Proposal constitutes a Superior Proposal, (D) approve, endorse, recommend or enter intoprior to furnishing such information to, or publicly propose engaging in discussions or negotiations with, such party, the Company receives from such party an executed confidentiality agreement with terms no less favorable to approvethe Company, endorsein all material respects, recommend than those contained in the Confidentiality Agreement, and (E) the Company notifies Parent not less than three (3) Business Days prior to taking such action (which notice shall identify the party making the proposal, and describe the material terms thereof). The Company agrees that it shall immediately cease and cause to be terminated any existing activities, discussions or enter into, negotiations with any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract parties conducted heretofore with respect to any Acquisition Proposal.
(b) The Company Board shall not withdraw (or modify in a manner adverse to Parent or Purchaser) or propose publicly to withdraw (or modify in a manner adverse to Parent or Purchaser) the Company Board Recommendation, or recommend, or propose publicly to recommend, the approval or adoption of any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(cAcquisition Proposal made by Parent) (such action is referred to herein as an “Alternative Acquisition AgreementAdverse Recommendation Change”); , unless (A) the Company Board determines in good faith after consultation with its outside legal counsel that the failure to make such an Adverse Recommendation Change would create a reasonable likelihood of a breach of its fiduciary duties to the Company’s shareholders under applicable Law, (B) the Company shall have complied in all respects with this Section 5.10 (other than immaterial failures to comply that do not prejudice Purchaser or Parent in any respect), (C) the Company shall have given Parent at least three (3) Business Days prior written notice of its intent to make an Adverse Recommendation Change and, in the event such Adverse Recommendation Change is the result of having received an Acquisition Proposal, attaching a description (if applicable) of all material terms and conditions of such Acquisition Proposal (it being agreed that any amendment to the amount or form of consideration of the Acquisition Proposal shall require a new notice and a new three (3) Business Day period), (D) during such three (3) Business Day period, the Company engages in good faith negotiations with Parent with respect to such changes to the terms of the Offer, the Merger and this Agreement as may be proposed by Parent, and (E) take if applicable, the Company does not receive from Parent a definitive and binding offer to enter into a definitive agreement which the Company Board determines, in good faith in consultation with its financial advisors, is at least as favorable to the shareholders of the Company as the Acquisition Proposal. Notwithstanding the foregoing, a communication by the Company Board to the shareholders of the Company pursuant to Rule 14e-2(a) or Rule 14d-9 of the Exchange Act shall not, in and of itself, be deemed to constitute an Adverse Recommendation Change, but any action statement by the Company pursuant to exempt Rule 14e-2(a) other than a recommendation to Company shareholders to accept the Offer (or any Third Party failure to make within the prescribed time period a recommendation to Company shareholders) shall be considered an Adverse Recommendation Change.
(c) If at any time prior to the acceptance for payment and payment of Shares by Purchaser in the Offer, the Company Board determines in good faith after consultation with its outside legal counsel, that the failure to accept an unsolicited Superior Proposal that did not result from a breach of this Section 5.10 would create a reasonable likelihood of a breach of its fiduciary duties to the restrictions on Company’s shareholders under applicable Law, the Company Board may terminate this Agreement pursuant to Section 7.3 hereof; provided, however, that the Company shall not terminate this Agreement, and any such termination shall be void and of no force and effect, unless (i) the Company pays to Parent the Termination Payment required by Section 7.5(a) and enters into a definitive agreement concerning the Superior Proposal, (ii) the Company shall have complied in all respects with this Section 5.10 (other than immaterial failures to comply that do not prejudice Purchaser or Parent in any respect), (iii) the Company shall have given Parent at least three (3) Business Days prior written notice of its intent to terminate the Agreement, attaching a description of all material terms and conditions of the Superior Proposal to such notice (it being agreed that any amendments to the amount or form of consideration of the Superior Proposal shall require a new notice and a new three (3) Business Day period), (iv) during such three (3) Business Day period, the Company engages in good faith negotiations with Parent with respect to such changes to the terms of the Offer, the Merger and this Agreement as may be proposed by Parent, and (v) Parent does not make prior to such termination a definitive and binding offer to enter into a definitive agreement which the Company Board determines, in good faith in consultation with its financial advisors is at least as favorable to the shareholders of the Company as the Superior Proposal; provided, however, that if the Superior Proposal consists entirely of cash consideration, an offer by Parent involving per share cash consideration payable to holders of Common Shares equal to or in excess of the per share cash consideration described in the Superior Proposal shall be deemed “business combinationsat least as favorable to the shareholders” of the Company as the Superior Proposal; provided that the conditions to Parent’s obligation to close the Merger are, in the opinion of the Company’s Board determined in good faith after consultation with the Company’s legal counsel, no more onerous to the Company and its shareholders than those contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingSuperior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Infousa Inc), Merger Agreement (Guideline, Inc.)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From and after the date of this Agreement until the earlier of the Effective Time or the termination of date, if any, on which this Agreement is terminated, and except as otherwise provided for in accordance with Section 8.01this Agreement, the Company Parent, Empagio and SMB shall not, and none of them shall (i) cause its Subsidiaries authorize or permit any of their respective Subsidiaries, directors, officers or employees to, and the respective directors and officers each of each Acquired Company and (ii) instruct and them shall use its their reasonable best efforts to cause the its investment bankers, financial advisors, attorneys, accountants or other Representatives advisors, agents or representatives (collectively, "Representatives") retained by it or any of each Acquired Company its Subsidiaries not to, directly or indirectly: indirectly through another Person, (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesencourage, or could take any other action designed to, or which would reasonably be expected to lead to, an Acquisition Proposalfacilitate, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public Person any information, or otherwise cooperate in any way with, any Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval, in response to a bona fide written Takeover Proposal that the Board of Directors of Parent determines in good faith (after consultation with outside counsel) constitutes or is reasonably likely to lead to a Superior Proposal, and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.02(a), Parent may, if its Board of Directors determines in good faith (after consultation with outside counsel) that the failure to do so would be reasonably likely to result in a breach of its fiduciary duties to its stockholders under applicable Law, and subject to compliance with Section 4.02(b), (i) furnish information relating with respect to it and its Subsidiaries to the Acquired Companies to, or afford access Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (which (A) need not restrict such person from making any unsolicited Takeover Proposal and (B) shall permit Parent to comply with the books or records or officers terms of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreementSection 4.02(c)); provided that notwithstanding all such information has previously been provided to Empagio or SMB, or is provided to Empagio or SMB prior to or substantially concurrent with the foregoingtime it is provided to such Person, and (ii) participate in discussions or negotiations with the Company person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal.
(b) Neither the Board of Directors of Parent nor any committee thereof shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committeei) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (DA) approve, endorse, recommend or enter intowithdraw, or publicly propose to withdraw, the approval, recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, endorseor propose publicly to recommend, recommend adopt or approve, any Takeover Proposal (any action described in this clause (i) being referred to as a "Company Adverse Recommendation Change") or (ii) approve or recommend, or propose to approve or recommend, or allow Parent or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other Contract similar agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Takeover Proposal (other than a confidentiality agreement referred to in Section 4.02(a)) (an "Acquisition Agreement"). Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval, the Board of Directors of Parent may, if such Board of Directors determines in good faith (after consultation with outside counsel) that the failure to do so would be reasonably likely to result in a breach of its fiduciary duties to the stockholders of Parent under applicable law, (x) make a Company Adverse Recommendation Change or (y) in response to a Superior Proposal that was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.02, cause Parent to terminate this Agreement (and concurrently with such termination enter into an Acquisition Agreement with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”such Superior Proposal); provided, however, that (E1) take no Company Adverse Recommendation Change may be made and (2) no such termination of this Agreement by Parent may be made, in each case until after the third business day following SMB's receipt of written notice from Parent advising SMB that the Board of Directors of Parent intends to make a Company Adverse Recommendation Change or terminate this Agreement pursuant to this Section 4.02(b). Such notice from Parent to SMB shall specify the reasons therefor, including the terms and conditions of any action to exempt any Third Party from Superior Proposal that is the restrictions on “business combinations” contained in Section 203 basis of the DGCL proposed action by the Board of Directors (it being understood and agreed that any amendment to the financial terms or any other applicable material term of such Superior Proposal shall require a new written notice by Parent and a new three business day period). In determining whether to make a Company Adverse Recommendation Change or to terminate this Agreement pursuant to this Section 4.02(b), the Board of Directors of Parent shall take into account any changes to the financial terms of this Agreement proposed by Parent in response to any such written notice by Parent or otherwise.
(c) In addition to the obligations of Parent set forth in Sections 4.02(a) and (b), Parent shall promptly advise SMB orally and in writing of any Takeover Statute Proposal, the material terms and conditions of any such Takeover Proposal (including any changes thereto) and the identity of the person making any such Takeover Proposal. Parent shall (i) keep SMB fully informed of the status and details (including any change to the terms thereof) of any such Takeover Proposal and any discussions and negotiations concerning the material terms and conditions thereof and (ii) provide to SMB any written proposals, term sheets, amendments, drafts of agreements and similar written documents exchanged between Parent or otherwise cause such restrictions not any of its officers, directors, investment bankers, attorneys, accountants or other advisors, on the one hand, and the party making a Takeover Proposal or any of its officers, directors, investment bankers, attorneys, accountants or other advisors, on the other hand, as promptly as reasonably practicable after receipt or delivery thereof.
(d) Nothing contained in this Section 4.02 shall prohibit Parent from (i) taking and disclosing to apply its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or (Fii) resolvemaking any disclosure to the stockholders of Parent if, agree, authorize or commit to do any in the good faith judgment of the foregoingBoard of Directors of Parent (after consultation with outside counsel), failure to so disclose would be inconsistent with its obligations under applicable Law; provided that disclosures under this Section 4.02(d) shall not be a basis, in themselves, for SMB to terminate this Agreement pursuant to Section 7.01.
Appears in 2 contracts
Sources: Merger Agreement (Workstream Inc), Merger Agreement (Workstream Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and nor shall (i) cause it authorize or permit any of its Subsidiaries and the or any of their respective directors and directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) retained by it or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not Affiliates to, directly or indirectly: indirectly through another person, (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesencourage, or take any other action designed to, or which could reasonably be expected to lead to, an Acquisition Proposalfacilitate, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public information relating to person any information, or otherwise cooperate in any way with, any Takeover Proposal. Without limiting the Acquired Companies foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 4.02(a) by the Company. The Company shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated any existing discussions or afford access negotiations with any person conducted heretofore with respect to any Takeover Proposal and request the books prompt return or records or officers destruction of all confidential information previously furnished to such person(s). Notwithstanding any other provision of this Agreement, at any time prior to obtaining the Shareholder Approval, in response to a bona fide written Takeover Proposal that the Board of Directors of the Acquired Companies toCompany determines in good faith by a majority vote of the disinterested members thereof (after consultation with outside counsel and a financial advisor of nationally recognized reputation, any Third Party, in each case, with respect to, it being agreed that the financial advisor may be ▇▇▇▇▇▇▇ or that could PiperJaffray) constitutes or would reasonably be expected to lead to, an Acquisition to a Superior Proposal, (C) grant any waiver, amendment or release and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingthis Section 4.02(a), the Company shall be permitted to grant may, if its Board of Directors determines in good faith by a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation majority vote of the Special Committee) has determined in good faith, disinterested members thereof (after consultation with its outside financial and outside legal advisors, counsel) that failure it is required to take such action would be inconsistent do so in order to comply with its fiduciary duties to the shareholders of the Company under Applicable Lawapplicable law, and subject to compliance with Section 4.02(c), (Dx) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract furnish information with respect to any Acquisition the Company and its Subsidiaries to the person making such Takeover Proposal other (and its Representatives) pursuant to a customary confidentiality agreement (a copy of which shall be provided to Parent) not less restrictive of such person than an Acceptable the Confidentiality Agreement Agreement; provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (y) participate in accordance discussions or negotiations with Section 6.02(cthe person making such Takeover Proposal (and its Representatives) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable regarding such Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingProposal.
Appears in 2 contracts
Sources: Merger Agreement (Benchmark Electronics Inc), Merger Agreement (Pemstar Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date (a) Each of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, Parent and the Company shall and their respective Subsidiaries will not, and shall (i) cause its Subsidiaries Parent and the respective directors and officers of each Acquired Company and (ii) instruct will direct and use its reasonable their respective best efforts to cause the their and their Subsidiaries' respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other Representatives of each Acquired Company representatives not to, directly or indirectly: (A) , take any action to solicit, initiate, seek encourage or knowingly encourage facilitate the making of any Acquisition Proposal (including without limitation by way amending, or granting any waiver under, the Parent Rights Agreement or the Company Rights Agreement, as applicable) or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto, or disclose any nonpublic information or afford access to properties, books or records to, any Person that has made, or to such party's knowledge, is considering making, any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of furnishing non-public Directors of Parent or the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of such party shall not recommend that the stockholders of such party tender their shares in connection with a tender offer or exchange offer except to the extent that, after receiving a Superior Proposal, such Board of Directors of such party determines in its good faith judgment, after receiving the advice of outside legal counsel, that, in light of such Superior Proposal, failure to make such a recommendation would be reasonably likely to be inconsistent with fulfilling the fiduciary duties of the Board of Directors to such party's stockholders under applicable law and such party shall have complied with the procedure set forth in Section 5.2 or 6.4, to the extent applicable. Notwithstanding anything to the contrary in this Agreement, prior to the date of approval of this Agreement and the Merger by the stockholders of Parent or the Company, as applicable, Parent or the Company may (A) furnish information and access to a third party, but only in response to a request for information or access, to any Person making an Acquisition Proposal to the board of directors of Parent or the Company, as applicable, after the date hereof which was not knowingly encouraged, solicited or initiated by Parent or the Company, as applicable, or any of its affiliates or any director, employee, representative or agent of Parent or the Company, as applicable, or any of its respective Subsidiaries (including, without limitation, any investment banker, attorney or accountant retained by Parent or the Company or any of its Subsidiaries) on or after the date hereof and (B) may participate in discussions and negotiate with such Person concerning any such Acquisition Proposal, if and only if, in any such case set forth in clause A or B of this paragraph, (i) the Board of Directors of Parent or Company, as applicable, concludes in good faith, after receipt of the advice of a financial advisor of nationally recognized reputation and outside legal counsel, that such Acquisition Proposal is reasonably likely to result in a Superior Proposal with respect to Parent or the Company, as applicable, (ii) the Company or Parent, as applicable, complies with all of its obligations under this Agreement, and (iii) the board of directors of Parent or the Company, as applicable, receives from the Person making such an Acquisition Proposal an executed confidentiality agreement the material terms of which are (without regard to the terms of such Acquisition Proposal) in all material respects (x) no less favorable to the Company or Parent, as applicable, and (y) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement.
(b) 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 such Acquisition Proposal and set forth the material terms thereof) the other party to this Agreement after receipt of any Acquisition Proposal, any indication of which such party has knowledge that any Person is considering making an Acquisition Proposal, or any request for nonpublic information relating to such party or any Acquired Company) Subsidiary of such party or for access to the properties, books or records of such party or any inquiry, discussion, offer or request Subsidiary of such party by any Person that constituteshas made, or could reasonably to such party's knowledge may be expected to lead toconsidering making, an Acquisition Proposal, and (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating will keep the other party to this Agreement informed of the status and material terms of (including all changes to the Acquired Companies status or material terms of) any such Acquisition Proposal or request. Each of Parent and the Company (x) shall, and shall cause their respective Subsidiaries to, or afford access 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 books or records or officers of the Acquired Companies to, date hereof with any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract Persons with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement and (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the 9 months prior to the date hereof in accordance connection with Section 6.02(c) (an “Alternative its consideration of any Acquisition Agreement”); (E) take any action Proposal to exempt any Third Party from the restrictions return or destroy all confidential information heretofore furnished to such Person by or on “business combinations” contained in Section 203 behalf of the DGCL it or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Texaco Inc), Merger Agreement (Chevron Corp)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with Section 8.01its terms, the Company shall and its subsidiary will not, and shall will use commercially reasonable efforts to cause their respective officers, directors, employees and investment bankers, attorneys or other agents retained by the Company or any of its subsidiaries not to, (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not toinitiate or solicit, directly or indirectly: , any inquiries or the making of any Acquisition Proposal or (Aii) solicitexcept as permitted below, initiate, seek engage in negotiations or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies data to, any Third Partyperson relating to an Acquisition Proposal (other than the transactions contemplated hereby).
(b) Notwithstanding any other provision of this Agreement, the Company may, prior to the purchase of Shares pursuant to the Offer, in each caseresponse to an unsolicited bona fide written proposal received on or after the date of this Agreement (and not withdrawn), with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal from a person, which did not result from a breach of this Section 7.2, participate in discussions or negotiations with or furnish information to any person if (i) the Board determines in good faith, after consultation with its financial advisor, that such person is reasonably likely to submit to the Company an Acquisition Proposal which is a Superior Proposal, (Cii) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and outside legal advisorscounsel, that the failure to take participate in such action discussions or negotiations or to furnish such information would be inconsistent with reasonably likely to be a breach of its fiduciary duties to the Company’s stockholders under Applicable Lawapplicable laws, (Diii) approveprior to taking such action, endorsethe Company receives from such person an executed confidentiality agreement having terms no more favorable than the Confidentiality Agreement and (iv) the Company promptly provides to Parent any non-public information that is provided to the person making such Acquisition Proposal or its representatives which was not previously provided to Parent or Newco. The Company may waive the provisions of any “standstill” agreement between the Company and any person to the extent necessary to permit such person to submit an Acquisition Proposal that the Board of Directors believes, recommend in its good faith judgment, is reasonably likely to result in a Superior Proposal.
(c) The Company shall and shall cause its subsidiary and their respective officers, directors, affiliates, employees, agents, financial advisors and representatives to immediately cease and cause to be terminated any and all existing activities, discussions or enter into, or publicly propose to approve, endorse, recommend or enter into, negotiations with any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract person conducted heretofore with respect to the possibility or consideration of any Acquisition Proposal Proposal.
(d) The Company shall and shall cause its subsidiary to notify Parent and Newco promptly (but in no event later than one business day) if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with the Company or its subsidiary, in each case in connection with any Acquisition Proposal. Each notice shall contain the name of any person making any such proposal, requesting such information or seeking such negotiations or discussions and a summary of the material terms and conditions of any proposals or offers and thereafter the Company shall keep Parent and Newco informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(e) For purposes of this Agreement, “Acquisition Proposal” means any bona fide proposal or offer made by any person other than an Acceptable Confidentiality Agreement Parent, Newco or any affiliate thereof relating to (i) any merger, consolidation recapitalization, reorganization, share exchange, business combination, liquidation, dissolution, sale, direct or indirect acquisition, or other disposition in accordance with Section 6.02(ca single transaction or in a series of transactions, involving (A) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 more than 20% of the DGCL fair market value of the assets of the Company and its subsidiary, taken as a whole (whether by purchase or any other applicable Takeover Statute assets or otherwise cause such restrictions not to apply otherwise) or (FB) resolve, agree, authorize or commit to do any over 20% of the foregoingShares; or (ii) any tender offer or exchange offer as defined pursuant to the Exchange Act, that if consummated, would result in any person beneficially owning 20% or more of the Shares.
Appears in 2 contracts
Sources: Merger Agreement (Factory Card & Party Outlet Corp), Merger Agreement (Amscan Holdings Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From and after the date hereof, Global and U S WEST shall not nor shall they permit any of this Agreement until the earlier their respective Subsidiaries to, nor shall they authorize or permit any of the Effective Time their respective officers, directors or the termination employees or any investment banker, financial advisor, attorney, accountants or other representatives retained by them or any of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its their respective Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly through another person, (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesinformation), or could reasonably be expected knowingly take any other action designed to lead tofacilitate, an Acquisition Proposalany Alternative Transaction (as hereinafter defined), or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Alternative Transaction; provided, or furnish however, that if, at any non-public information relating time prior to the Acquired Companies totime the Global Stockholders' Approval or the U S WEST Stockholders' Approval, or afford access to as the books or records or officers of the Acquired Companies tocase may be, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingis obtained, the Company shall be permitted to grant a waiver Board of Directors of Global or terminate any “standstill” or similar agreement or obligation of any Third Party to U S WEST, as the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined case may be, determines in good faith, after consultation with its receipt of advice from outside financial and outside legal advisorscounsel, that the failure to take provide such action information or to participate in such negotiations or discussions would be inconsistent with its result in a reasonable likelihood that such Board of Directors would breach their fiduciary duties to stockholders under Applicable Lawapplicable law, Global or U S WEST, as the case may be, may, in response to a proposal that has been determined by it to be a Global Superior Proposal (as defined in Section 7.2 hereof) or a U S WEST Superior Proposal (as defined in Section 7.2 hereof), as the case may be, that was not solicited by it and that did not otherwise result from a breach of this Section 6.3, and subject to the Party receiving such proposal giving the other Party at least two business days written notice of its intention to do so, (Dx) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract furnish information with respect to Global or U S WEST, as the case may be, to any Acquisition Proposal other person pursuant to a customary confidentiality agreement containing terms no less restrictive than an Acceptable the terms of the Confidentiality Agreement (as defined in accordance Section 7.5(b) hereof), provided that a copy of all such information is delivered simultaneously to the other Party, and (y) engage in negotiations regarding such proposal. Each of Global and U S WEST shall promptly notify the other orally and in writing of any request for information or of any proposal in connection with Section 6.02(can Alternative Transaction, the material terms and conditions of such request or proposal (including a copy thereof, if in writing, and all other documentation and any related correspondence) and the identity of the person making such request or proposal. Each of Global and U S WEST will keep the other Party reasonably informed of the status and details (an “Alternative Acquisition Agreement”); including amendments or proposed amendments) of such request or proposal on a current basis. Each of Global and U S WEST each immediately cease and terminate any existing solicitation, initiation, encouragement activity, discussion or negotiation with any persons conducted heretofore by them or their representatives with respect to the foregoing.
(Eb) take any action Each of Global and U S WEST (i) agrees not to exempt release any Third Party from (as defined in Section 6.3(c)) from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreement to which it is a party related to, or which could affect, an Alternative Transaction and agrees that either Party shall be entitled to enforce the restrictions on “business combinations” other Party's rights and remedies under and in connection with such agreements and (ii) acknowledges that the provisions of clause (i) are an important and integral part of this Agreement. Nothing contained in this Section 203 6.3 or in Section 7.2 shall prohibit either Party (i) from taking and disclosing to its stockholders a position contemplated by Rule 14e-9 or Rule 14e-2(a) promulgated under the Exchange Act, or (ii) from making any disclosure to its stockholders if, in the good faith judgment of the DGCL Board of Directors of such Party, after receipt of advice from outside counsel, failure to disclose would result in a reasonable likelihood that such Board of Directors would breach its duties to such Party's stockholders under applicable law.
(c) For purposes of this Agreement, "Alternative Transaction" means a proposal or intended proposal, regarding any of (i) a transaction or series of transactions pursuant to which any person (or group of persons) other than a Party and its Subsidiaries (a "Third Party") acquires or would acquire, directly or indirectly, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of more than twenty percent (20%) of the outstanding shares of Global or U S WEST, as the case may be, whether from Global or U S WEST or pursuant to a tender offer or exchange offer or otherwise, (ii) any acquisition or proposed acquisition of, or business combination with, Global or any of its Significant Subsidiaries or U S WEST or any of its Significant Subsidiaries, as the case may be, by a merger or other applicable Takeover Statute business combination (including any so-called "merger-of-equals" and whether or otherwise cause not Global or any of its Significant Subsidiaries or U S WEST or any of its Significant Subsidiaries, as the case may be, is the entity surviving any such restrictions not to apply merger or business combination), or (Fiii) resolveany other transaction pursuant to which any third party acquires or would acquire, agreedirectly or indirectly, authorize control of assets (including for this purpose the outstanding equity securities of Subsidiaries of Global or commit to do U S WEST, as the case may be, and any entity surviving the merger or business combination including any of them) of Global or any of its Subsidiaries or U S WEST or any of its Subsidiaries, as the foregoingcase may be, for consideration equal to twenty percent (20%) or more of the fair market value of all of the outstanding shares of Global Common Stock or all of the outstanding shares of U S WEST Common Stock, as the case may be, on the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (U S West Inc /De/), Merger Agreement (Global Crossing LTD)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of (a) Unless and until this Agreement until the earlier of the Effective Time shall have been terminated pursuant to Article VIII neither Parent nor its officers, directors, stockholders or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not toagents shall, directly or indirectly: (A) solicit, initiateencourage, seek solicit or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any initiate discussions or negotiations with, or furnish any engage in negotiations or discussions with, or provide non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third PartyPerson or group of Persons concerning any merger, sale of capital stock, sale of substantial assets or other business combination; provided, however, that Parent may engage in each case, with respect to, or that could reasonably be expected such discussion and provide such non-public information (subject to lead to, obtaining confidentiality agreements) in response to an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential unsolicited proposal being made to the Company Board or the Special Committee from an unrelated party if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors of Parent determines, in good faith, after consultation with its outside financial and outside legal advisorscounsel, that the failure to take engage in such action would be inconsistent with its discussions and provide such non-public information (subject to obtaining confidentiality agreements) may constitute a breach of the fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, legal obligations of the Board of Directors of Parent. Parent will promptly advise the Company if it receives a proposal or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract inquiry with respect to the matters described above.
(b) Unless and until this Agreement shall have been terminated pursuant to Article VIII, neither the Company nor its officers, directors or agents shall, directly or indirectly, encourage, solicit or initiate discussions or negotiations with, or engage in negotiations or discussions with, or provide non-public information to, any Acquisition Proposal Person or group of Persons concerning any merger, sale of common stock or any of its other securities (other than the PPO), sale of substantial assets or other business combination; provided, however, that the Company may engage in such discussion in response to any unsolicited proposal from an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from unrelated party if the restrictions on “business combinations” contained in Section 203 Board of Directors of the DGCL or any other applicable Takeover Statute or otherwise cause Company determines, in good faith, after consultation with counsel, that the failure to engage in such restrictions not discussions and provide such non-public information (subject to apply or (Fobtaining confidentiality agreements) resolve, agree, authorize or commit to do any may constitute a breach of the foregoingfiduciary or legal obligations of the Board of Directors of the Company. The Company will promptly advise Parent if it receives a proposal or inquiry with respect to the matters described above.
Appears in 1 contract
No Solicitation. (a) During the period beginning on the date of this Agreement and continuing until 11:59 p.m., New York City time, on the forty-fifth (45th) day following the date of this Agreement (such time and date, the “Solicitation Period End Time”), the Company, the Company Subsidiaries and their respective Representatives shall have the right to: (i) initiate, solicit and encourage, whether publicly or otherwise, Alternative Proposals from any other Person or group of Persons (including, following entry by such Person(s) into an Acceptable Confidentiality Agreement (unless such Person(s) is/are subject to a confidentiality agreement with the Company entered into prior to the date of this Agreement; it being understood that the Company shall have the right to waive any provision prohibiting submission of Alternative Proposals or amendments thereto in effect as of the date of this Agreement), by way of furnishing to such Person(s) and its/their Representatives, Affiliates and prospective financing sources non-public information concerning, and affording such Person(s) and its/their Representatives, Affiliates and prospective financing sources access to, the Company, the Company Subsidiaries and their businesses, properties, assets, books and records); provided, however, that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or the Company Subsidiaries that is made available to such Person(s) which was not previously made available to Parent and Merger Sub; and (ii) enter into and maintain or continue substantive discussions or negotiations with respect to Alternative Proposals or otherwise cooperate with or assist or participate in, or encourage, any inquiries, proposals, substantive discussions or negotiations regarding an Alternative Proposal. No later than three (3) Business Days after the Solicitation Period End Time, the Company shall deliver to Parent a written summary of the material terms of any Alternative Proposal made by any Excluded Person (without identifying such Excluded Person) prior to the Solicitation Period End Time.
(b) Except as permitted by this Section 6.026.2, during after the period from Solicitation Period End Time (or, as may relate to any Excluded Person, immediately after the date Cut-Off Date), the Company and the Company Subsidiaries shall, and the Company shall cause its Representatives to, immediately cease any activities permitted by Section 6.2(a), and any discussions or negotiations with any Person or group that may be ongoing with respect to any Alternative Proposal. With respect to any Person or group with whom such discussions or negotiations have been terminated, the Company shall use its reasonable best efforts to promptly require such Person or group to promptly return or destroy in accordance with the terms of this Agreement the applicable confidentiality agreement any information furnished by or on behalf of the Company. After the Solicitation Period End Time until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.018.1, the Company agrees that the Company and the Company Subsidiaries shall not, and shall (i) cause its Subsidiaries the Company and the Company Subsidiaries shall instruct their respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or solicit or knowingly encourage any inquiries, discussions or proposals regarding any Alternative Proposal (including by way of furnishing providing non-public information relating to any Acquired Person for the purpose of making, evaluating, or determining whether to make or pursue, any inquiries or proposals with respect to any Alternative Proposal), (ii) continue, propose, enter into or participate in any way in negotiations or discussions with respect to any Alternative Proposal, or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other agreement or understanding providing for any Alternative Proposal. Notwithstanding the foregoing, the Company, the Company Subsidiaries and their respective Representatives may continue to take any of the actions described in Section 6.2(a) after the Solicitation Period End Time until 11:59 p.m., New York City time, on the fifteenth (15th) day following the Solicitation Period End Time (the “Cut-Off Date”) with respect to any inquiryPerson or group of Persons that has made (or, discussionin the case of any group of Persons, offer any one or request that more members of which has made, either individually or as a member of a group) an Alternative Proposal prior to the Solicitation Period End Time if, in the good faith judgment of the Transaction Committee (after consultation with the Transaction Committee’s financial advisor and outside counsel), such Alternative Proposal constitutes, or could is reasonably be expected likely to lead to, a Superior Proposal (such Person or group of Persons, an Acquisition “Excluded Person”); provided, however, that any such Person(s) shall cease to be an Excluded Person immediately at such time, if any, as the Alternative Proposal made by such Person(s) is withdrawn or terminates (it being understood and agreed that any modification or amendment or such Alternative Proposal shall not constitute the withdrawal or termination thereof).
(c) Notwithstanding anything in this Agreement to the contrary (but subject to the final sentence of Section 6.2(b)), after the Solicitation Period End Time until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.1, the Company (directly or through its Representatives) may:
(i) until receipt of the Company Stockholder Approvals, engage in substantive discussions or negotiations with a Person or group of Persons that makes a bona fide Alternative Proposal that did not result from any material breach of this Section 6.2 and may furnish to such Person(s) and its/their Representatives information concerning, and may afford such Person(s) and its/their Representatives access to, the Company and the Company Subsidiaries and their businesses, properties, assets, books and records, if (x) in the good faith judgment of the Transaction Committee (after consultation with the Transaction Committee’s financial advisor and outside counsel), such Alternative Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (y) prior to furnishing such information or access to, or entering into substantive discussions (except as to the existence of this Section 6.2 or to ask such Person(s) to clarify the terms and conditions of such Alternative Proposal) or negotiations with, such Person(s), (A) the Company receives from such Person(s) an executed Acceptable Confidentiality Agreement (or such Person(s) is/are subject to a confidentiality agreement with the Company entered into prior to the Solicitation Period End Time; it being understood that the Company shall have the right to waive any provision prohibiting the making of Alternative Proposals or amendments thereto in effect as of the date of this Agreement) and (B) enter intothe Company notifies Parent promptly (and, continue or otherwise participate in any event, within forty-eight (48) hours) to the effect that it intends to furnish information or access to, or intends to enter into substantive discussions or negotiations with, or furnish such Person(s); provided, however, that the Company shall promptly make available to Parent and Merger Sub any material non-public information relating concerning the Company or the Company Subsidiaries that is made available to such Person(s) which was not previously made available to Parent and Merger Sub;
(ii) comply with Rules 14e-2(a) and 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to a tender or exchange offer (after consultation with the Company’s outside counsel); provided, that neither the Company Board nor any committee thereof shall effect a Change in Recommendation unless the applicable requirements in Section 6.2(d) shall have been satisfied;
(iii) make “stop-look-and-listen” communications with respect to an Alternative Proposal in compliance with the exemption contained in Rule 14d-9(f) under the Exchange Act; and
(iv) make any other disclosure to the Acquired Companies to, or afford access Company’s stockholders if the Transaction Committee determines in good faith (after consultation with the Transaction Committee’s outside counsel) that the failure to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could make such disclosure would reasonably be expected to lead tobe inconsistent with applicable Law.
(d) The Transaction Committee and the Company Board may not (i) withdraw or modify, or publicly propose or resolve to withdraw or modify, in a manner adverse to Parent, or fail to include in the Proxy Statement, their approval or recommendation of the Merger or this Agreement (except as set forth in clause (y) of the proviso in Section 2.6(a)(ii) or as set forth below in this Section 6.2(d)), (ii) approve or recommend, or propose publicly to approve or recommend, to the stockholders of the Company an Acquisition Alternative Proposal, (Ciii) grant after the Solicitation Period End Time (or, if there are any waiverExcluded Persons, amendment the Cut-Off Date) fail to publicly reaffirm their approval or release recommendation of the Merger or this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Proposal (or any Third Party material modification thereto) shall have been made public or sent or given to the stockholders of the Company (or any Person shall have publicly announced an intention, whether or not conditional, to make an Alternative Proposal), (iv) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Alternative Proposal subject to Regulation 14D under the Exchange Act within ten (10) Business Days after the commencement of such Alternative Proposal (any standstill action described in the clauses (i) to (iv), a “Change in Recommendation”) or confidentiality agreement; provided that notwithstanding (v) cause the Company or any of the Company Subsidiaries to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Proposal (other than an Acceptable Confidentiality Agreement). Notwithstanding the foregoing, at any time prior to receipt of the Company shall be permitted Stockholder Approvals, if the Transaction Committee (after consultation with the Transaction Committee’s financial advisor and outside counsel) determines in good faith that any Alternative Proposal referred to grant in Section 6.2(a), the final sentence of Section 6.2(b) or clause (i) of Section 6.2(c) constitutes a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to Superior Proposal, the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Transaction Committee if and the Company Board (acting upon the recommendation of the Special Transaction Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.may:
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02(a) The Company shall not (and shall not resolve or publicly propose to) directly or indirectly, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, and the Company shall not, ensure that the other Acquired Corporations and shall each Person who is an officer or director of any of the Acquired Corporations do not (iand do not resolve or publicly propose to) cause its Subsidiaries (and the respective directors and officers of each Acquired Company and (ii) instruct and shall use its reasonable best efforts to cause the ensure that each other Representatives Representative of each any Acquired Company Corporation does not, and does not resolve or publicly propose to, ) directly or indirectly: (Ai) solicit, initiate, seek knowingly encourage, knowingly assist or knowingly encourage facilitate the making, submission or announcement of any Acquisition Proposal (including by way approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of furnishing Section 203 of the DGCL); (ii) furnish or otherwise provide access to any non-public information relating regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal; or (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in Section 4.3(a), prior to the adoption of this Agreement by the Required Company Stockholder Vote, the Company may furnish or otherwise provide access to non-public information regarding the Acquired Corporations to, and may enter into discussions or negotiations with, any Person in response to an unsolicited, bona fide, written Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn) if: (i) none of the Acquired Corporations shall have materially breached (and none of the officers or directors shall have taken action that would have been a material breach had such action been taken by the Company) any inquiryof the provisions set forth in Section 4.3(a) in a manner that resulted in the submission of such Acquisition Proposal; (ii) the board of directors of the Company determines in good faith, discussionafter having taken into account the advice of an independent financial advisor of nationally recognized reputation and the Company’s outside legal counsel, offer or request that constitutes, such Acquisition Proposal constitutes or could reasonably be expected to lead toresult in 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 reasonably required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company’s stockholders under applicable Delaware law; (iv) the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such Person by or on behalf of the Acquired Corporations and other provisions not materially less favorable to the Company than the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (it being understood that such confidentiality agreements (A) need not prohibit the making or amendment of an Acquisition Proposal, Proposal and (B) enter intomay include a standstill on terms more favorable to such Person than the standstill contained in the Confidentiality Agreement; provided, continue that if any of the standstill provisions in any confidentiality agreement entered into by the Company with such Person following the date of this Agreement pursuant to this Section 4.3(b) or otherwise participate are more favorable to such Person than the corresponding terms contained in the Confidentiality Agreement (including if any such confidentiality agreement does not include a standstill), then the standstill in the Confidentiality Agreement shall be deemed to be amended to conform to such less restrictive confidentiality agreement); and (v) within 24 hours of furnishing any 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).
(c) If the Company, any other Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal 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 48 hours after receipt of such Acquisition Proposal or request): (i) advise Parent in writing of such Acquisition Proposal or request (including the identity of the Person making or submitting such Acquisition Proposal or request and the material terms and conditions thereof); and (ii) provide Parent with copies of all documents and other written communications received by any Acquired Corporation or any Representative of any Acquired Corporation setting forth the terms and conditions of such Acquisition Proposal or request and a written summary of the material terms and conditions of any Acquisition Proposals not made in writing. The Company shall keep Parent reasonably informed with respect to the status and terms of any such Acquisition Proposal (including amendments thereto) and the status of any related discussions or negotiations, including by providing Parent promptly (and in no event later than 48 hours after receipt) copies of any additional written correspondence or other documents received by any Acquired Corporation or any Representative of any Acquired Corporation from the Person who made such Acquisition Proposal or from any Representative of such Person to the extent such correspondence or other document contains material information about the terms or conditions of such Acquisition Proposal.
(d) The Company shall, and shall ensure that the other Acquired Corporations and each Person that is a Representative of any of the Acquired Corporations, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, or furnish any non-public information Person relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal.
(e) The Company agrees that it will not, (C) grant any waiverand shall ensure that each other Acquired Corporation will not, amendment release or permit the release of any Third Party under Person from, or amend, waive or permit the amendment or waiver of the standstill provision of any standstill or confidentiality agreement; provided that notwithstanding the foregoing, agreement entered into by the Company shall be permitted or any other Acquired Corporation pursuant to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to Section 4.3(b); provided, however, that the Company Board or such other Acquired Corporation may release a Person from, or amend or waive any provision of, any such standstill provision if: (1) the Special Committee if the Company Board (acting upon the recommendation Company’s board of the Special Committee) has determined directors reasonably determines in good faith, after consultation with its outside financial and having taken into account the advice of the Company’s outside legal advisorscounsel, that failure the release of such Person from such agreement or provision or the amendment of such agreement or waiver of such provision is reasonably required in order for the board of directors of the Company to take such action would be inconsistent comply with its fiduciary duties obligations to the Company’s stockholders under Applicable Law, applicable Delaware law; and (D2) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter the Company provides Parent with written notice of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract such action substantially concurrently with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause taking such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingaction.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.015.3, the Company and its Subsidiaries shall not, and shall (i) cause the Company and its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and shall use its reasonable their best efforts to cause the other Representatives of each Acquired Company their respective representatives not to, directly or indirectly: (A) solicit, initiate, seek solicit or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, facilitate inquiries or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, proposals with respect to, or that could reasonably be expected to lead engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, an or have any discussions with, any person relating to, any Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding in the foregoingevent that, prior to the time that the Company’s shareholders’ approval of the Merger (the “Company Shareholder Approval”) is obtained but not after, (1) the Company shall be permitted to grant receives, after the execution of this Agreement, an unsolicited bona fide Acquisition Proposal from a waiver person other than Parent, and (2) the Company’s Board of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors concludes in good faithfaith (A) that, after consultation consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside financial and outside legal advisorscounsel, that failure to take such action actions would be inconsistent with its fiduciary duties to the Company’s shareholders under Applicable applicable Law, the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Parent and the Company dated June 5, 2018 (Dthe “Confidentiality Agreement”) and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person. The Company will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any persons other than Parent with respect to any Acquisition Proposal, (B) 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 (C) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Neither the Company’s Board of Directors nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Parent) or refuse to make the Company Board Recommendation or (B) adopt, approve, endorserecommend, recommend endorse or enter intootherwise declare advisable the adoption of any Acquisition Proposal, or publicly propose (ii) cause or permit the Company or any of its Subsidiaries to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract agreement constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement permitted by the terms of Section 5.3(a) of this Agreement). Notwithstanding the foregoing, prior to the date of the Company Shareholders Meeting, the Company’s Board of Directors may take any of the actions specified in items (i) and (ii) of the preceding sentence (a “Company Subsequent Determination”) after the fourth (4th) Business Day following Parent’s receipt of a written notice (the “Notice of Superior Proposal”) from the Company (A) advising that the Company’s Board of Directors has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result from a breach of this Section 5.3 or from an action by a representative of the Company or its Subsidiaries that would have been such a breach if committed by the Company or its Subsidiaries) constitutes a Superior Proposal (it being understood that the Company shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its Affiliates that the Company proposes to accept), (B) specifying the material terms and conditions of, and the identity of the party making, such Superior Proposal, and (C) containing an unredacted copy of the relevant transaction agreements with the party making such Superior Proposal, if, but only if, the Company’s Board of Directors has reasonably determined in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law and that such Acquisition Proposal is 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 all adjustments to the terms of this Agreement that are committed to in writing by Parent pursuant to this Section 5.3(b). Notwithstanding the foregoing, the changing, qualifying or modifying of the Company Board Recommendation or the making of a Company Subsequent Determination by the Company’s Board of Directors shall not change the approval of the Company’s Board of Directors for purposes of causing any takeover Laws (or comparable provisions of any certificate of incorporation, by-law or agreement) to be inapplicable to this Agreement, the Voting Agreements and the transactions contemplated hereby and thereby, including the Merger.
(c) Nothing contained in this Agreement shall prevent the Company or the Company’s Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act (if and to the extent that such rules are applicable to the Company) or other disclosure requirements under applicable Law, with respect to an Acquisition Proposal; provided that such rules will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement.
(d) In addition to the obligations of the Company set forth in Sections 5.3(a) and (b) of this Agreement, in the event that the Company or any of its Subsidiaries or any representative of the Company or its Subsidiaries receives (i) any Acquisition Proposal other than or (ii) any request for non-public information or to engage in negotiations that the Company’s Board of Directors believe is reasonably likely to lead to or that contemplates an Acceptable Confidentiality Agreement Acquisition Proposal, the Company promptly (and in accordance with Section 6.02(cany event within 48 hours of receipt) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained shall advise Parent in Section 203 writing of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply existence of the matters described in clause (i) or (Fii), together with the material terms and conditions of such Acquisition Proposal or request and the identity of the person making any such Acquisition Proposal or request. The Company shall keep Parent reasonably well informed in all material respects of the status (including after the occurrence of any material amendment or modification) resolve, agree, authorize of any such Acquisition Proposal or commit to do request. Without limiting any of the foregoing, the Company shall promptly (and in any event within 48 hours) notify Parent in writing if it determines to begin providing non-public information or to engage in negotiations concerning an Acquisition Proposal pursuant to Sections 5.3(a) or (b) of this Agreement and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(e) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) Company shall not, and shall (i) cause each of its Subsidiaries and the its and their respective directors officers, directors, employees, agents and officers of each Acquired Company investment bankers, financial advisors, attorneys, accountants and other retained representatives or agents (iieach, a “Representative”) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: indirectly (Ai) solicit, initiate, seek encourage or knowingly encourage facilitate (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesinformation), or could reasonably be expected take any other action designed to lead tofacilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including, by way of a tender offer) or similar transactions involving Company or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”), (Bii) enter into, continue or otherwise participate in any discussions or negotiations regarding an Alternative Transaction or Acquisition Proposal or (iii) enter into any agreement regarding any Alternative Transaction or Acquisition Proposal; provided, however, that, in the event that (x) Company shall receive a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Agreement and (y) prior to receipt of the Required Shareholder Approval, the board of directors of Company determines in its good faith judgment, after receiving the advice of outside counsel, that, in light of such Superior Proposal, if Company fails to participate in such discussions or negotiations with, or furnish any non-public provide such information relating to the Acquired Companies to, or afford access to the books or records or officers of party making the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Superior Proposal, (C) grant any waiver, amendment or release the board of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the directors of Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with in violation of its fiduciary duties under Applicable applicable Law, Company may (DA) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract furnish information with respect to it and its Subsidiaries to the party making such Superior Proposal pursuant to a customary confidentiality agreement containing terms no less restrictive to the party making the Superior Proposal than the terms contained in the Confidentiality Agreement, provided that a copy of all such written information is simultaneously provided to Parent, and (B) participate in discussions regarding such Superior Proposal.
(b) As used in this Agreement, “Alternative Transaction” means any Acquisition Proposal of (i) a transaction pursuant to which any person (or group of persons) other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(cParent or its Affiliates, directly or indirectly, acquires or would acquire more than twenty-five (25) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 percent of the DGCL outstanding shares of Company Common Stock or outstanding voting power of the Company, or more than twenty-five (25) percent of the outstanding shares or voting power of any other series or class of capital stock of the Company that would be entitled to a class or series vote with respect to the Merger, whether from Company, or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, consolidation or other business combination involving Company (other than the Merger), (iii) any transaction pursuant to which any person (or group of persons) other than Parent or its Affiliates acquires or would acquire control of assets (including for this purpose the outstanding equity securities of any Company Subsidiaries and securities of the entity surviving any merger or business combination involving any Company Subsidiary) of Company or any other applicable Takeover Statute of its Subsidiaries representing more than twenty-five (25) percent of the fair market value of all the assets, deposits, net revenues or otherwise cause net income of Company and its Subsidiaries, taken as a whole, immediately prior to such restrictions not to apply transaction or (Fiv) resolveany other consolidation, agreebusiness combination, authorize recapitalization or commit to do similar transaction involving Company or any of its Subsidiaries, other than the foregoingtransactions contemplated by this Agreement, as a result of which the holders of shares of Company Common Stock immediately prior to such transaction do not, in the aggregate, own at least seventy-five (75) percent of each of the outstanding shares of Company Common Stock and the outstanding voting power of the surviving or resulting entity in such transaction immediately after the consummation thereof in substantially the same proportion as such holders held the shares of Company Common Stock immediately prior to the consummation thereof.
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and nor shall (i) cause it authorize or permit any of its Subsidiaries and the respective directors and directors, officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the or employees or any investment banker, financial advisor, attorney, accountant or other Representatives of each Acquired Company not representative retained by it to, directly or indirectlyindirectly through another Person: (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesinformation), or could reasonably be expected take any other action designed to lead tofacilitate, an Acquisition any inquiries or the making of any proposal which constitutes a Company Takeover Proposal, ; or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the approval of the Company’s Stockholders of this Agreement, and the Merger or furnish any non-public the transactions contemplated by this Agreement, the Company may, in response to a Company Takeover Proposal which was not solicited by it and which did not otherwise result from a breach of this Section 4.6(a), (i) if, and only if, and only for so long as, this Agreement has not been previously filed by the Parent with the SEC, request from the person making such a Company Takeover Proposal such information relating as may be reasonably necessary for the Board of Directors to inform themselves as to the Acquired Companies tomaterial terms of such Company Takeover Proposal for the sole purpose of determining whether such Company Takeover Proposal is reasonably likely to lead to a Company Superior Proposal, or afford access and subject to the books or records or officers execution of a customary confidentiality agreement (as determined by the Acquired Companies toCompany after consultation with its outside counsel, any Third Partythe terms of which are no more favorable to such person than the Confidentiality Agreement), in each casethe Company may provide a copy of this Agreement to the person making the Company Takeover Proposal; provided, with respect tohowever, or that could reasonably be expected to lead to, an Acquisition upon receipt of such information requested from the person making such a Company Takeover Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall not be permitted to grant a waiver of or terminate engage in any “standstill” or similar agreement or obligation of further communications with any Third Party such person except to the extent permitted by this Section 4.6; and (ii) if the Board of Directors determines in good faith, after consultation with a financial advisor of national reputation, that such agreement or obligation prohibits Company Takeover Proposal is reasonably likely to lead to a confidential proposal being made Company Superior Proposal, and subject to providing prior written notice of its decision to take such action to Parent pursuant to paragraph (c) below, (A) furnish information with respect to the Company Board or to the Special Committee if person making such Company Takeover Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel, the terms of which are no more favorable to such person than the Confidentiality Agreements) and (B) participate in discussions or negotiations regarding such Company Takeover Proposal (the actions in this clause (ii), a “Company Takeover Response”).
(b) Except as expressly permitted by this Section 4.6, neither the Company nor the Board of Directors shall: (acting upon i) approve or recommend, or propose publicly to approve or recommend, any Company Takeover Proposal, or (ii) cause the recommendation Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (other than a confidentiality agreement referred to in Section 4.6(a)) (each, a “Company Acquisition Agreement”) related to any Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to the obtaining of the Special Committee) has determined approval of the Company Stockholders of this Agreement, the Merger and the transactions contemplated by this Agreement, the Board of Directors, to the extent that it determines in good faith, after consultation with its outside financial and outside legal advisorscounsel, that the failure to take such action would could reasonably be inconsistent with expected to result in a breach of its fiduciary duties to the Company Stockholders under Applicable Lawapplicable law, may (Dsubject to this and the following sentences) approverecommend any Company Superior Proposal, endorsebut only at a time that is after the fifth business day following Parent’s receipt of written notice advising Parent that the Board of Directors is prepared to recommend a Company Superior Proposal, recommend or enter intospecifying the terms and conditions of such Company Superior Proposal and identifying the person making such Company Superior Proposal. During this five business day period, or publicly propose Parent may make, and in such event the Company shall consider in good faith, a counterproposal to approvesuch Company Superior Proposal, endorseand, recommend or enter intosubject to the fiduciary duties of the Board of Directors, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract the Company shall itself and shall cause its financial and legal advisors to negotiate on its behalf with Parent with respect to the terms and conditions of such counterproposal for a reasonable period of time given the terms and conditions of such counterproposal and such Company Superior Proposal. In addition, the Board of Directors shall have a period of at least three business days prior to the Company Stockholders Meeting to recommend a Company Superior Proposal and the Company may postpone the Company’s Stockholders Meeting for an additional time period so as to provide such three business days. In the event the Company Stockholders Meeting is postponed to comply with the additional time periods set forth in the preceding sentence, the Outside Closing Date shall be extended for such additional time period.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 4.6, the Company shall promptly, but in any Acquisition Proposal other event no more than an Acceptable Confidentiality Agreement twenty-four (24) hours, advise Parent orally and in accordance writing of any request for information (including any request for information in compliance with Section 6.02(c4.6(a)), that could reasonably be expected to result in a Company Takeover Proposal or of any Company Takeover Proposal, the material terms and conditions of such request or Company Takeover Proposal and the identity of the person making such request or Company Takeover Proposal. The Company will keep Parent reasonably informed on a current basis of the status and details (including amendments or proposed amendments) of any such request or Company Takeover Proposal.
(an “Alternative Acquisition Agreement”); (Ed) take any action to exempt any Third Party from the restrictions on “business combinations” Nothing contained in this Section 203 4.6 shall prohibit the Company or its Board of Directors from making any disclosure to the stockholders of the DGCL or any other Company required by applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingLaw.
Appears in 1 contract
Sources: Merger Agreement (Hologic Inc)
No Solicitation. (a) Except as expressly permitted by this Section 6.025.3, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company Shore and its Subsidiaries shall not, and shall (i) cause Shore and its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and shall use its reasonable their best efforts to cause the other Representatives of each Acquired Company their respective representatives not to, directly or indirectly: (A) solicit, initiate, seek solicit or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, facilitate inquiries or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, proposals with respect to, or that could reasonably be expected to lead engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, an or have any discussions with, any person relating to, any Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding in the foregoingevent that, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party prior to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation time that Shore’s shareholders’ approval of the Special CommitteeMerger (the “Shore Shareholder Approval”) has determined is obtained but not after, (1) Shore receives, after the execution of this Agreement, an unsolicited bona fide Acquisition Proposal from a person other than Purchaser, and (2) Shore’s Board of Directors concludes in good faithfaith (A) that, after consultation consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside financial and outside legal advisorscounsel, that failure to take such action actions would be inconsistent with its fiduciary duties to Shore’s shareholders under Applicable applicable Law, Shore may, and may permit its Subsidiaries and its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Purchaser and Advisory Firm, on behalf of Shore, dated February 12, 2019 and the Confidentiality Agreement between Purchaser and Shore, dated May 15, 2019 (Dtogether, the “Confidentiality Agreements”) and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such person. Shore will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any persons other than Purchaser with respect to any Acquisition Proposal, (B) 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 (C) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Neither Shore’s Board of Directors nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Purchaser) or refuse to make the Shore Board Recommendation or (B) adopt, approve, endorserecommend, recommend endorse or enter intootherwise declare advisable the adoption of any Acquisition Proposal, or publicly propose (ii) cause or permit Shore or any of its Subsidiaries to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract with respect agreement constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with a confidentiality agreement permitted by the terms of Section 6.02(c5.3(a) (an “Alternative Acquisition of this Agreement”); (E) . Notwithstanding the foregoing, prior to the date of the Shore Shareholders Meeting, Shore’s Board of Directors may take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL actions specified in items (i) and (ii) of the preceding sentence (a “Shore Subsequent Determination”) after the fourth (4th) Business Day following Purchaser’s receipt of a written notice (the “Notice of Superior Proposal”) from Shore (A) advising that Shore’s Board of Directors has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result from a breach of this Section 5.3 or from an action by a representative of Shore or its Subsidiaries that would have been such a breach if committed by Shore or its Subsidiaries) constitutes a Superior Proposal (it being understood that Shore shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its Affiliates that Shore proposes to accept), (B) specifying the material terms and conditions of, and the identity of the party making, such Superior Proposal, and (C) containing an unredacted copy of the relevant transaction agreements with the party making such Superior Proposal, if, but only if, Shore’s Board of Directors has reasonably determined in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be inconsistent with its fiduciary duties to Shore’s shareholders under applicable Law and that such Acquisition Proposal is 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 all adjustments to the terms of this Agreement that are committed to in writing by Purchaser pursuant to this Section 5.3(b).
(c) In addition to the obligations of Shore set forth in Sections 5.3(a) and (b) of this Agreement, in the event that Shore or any other applicable Takeover Statute of its Subsidiaries or otherwise cause such restrictions not to apply any representative of Shore or its Subsidiaries receives (i) any Acquisition Proposal or (Fii) resolveany request for non-public information or to engage in negotiations that Shore’s Board of Directors believe is reasonably likely to lead to or that contemplates an Acquisition Proposal, agreeShore promptly (and in any event within 48 hours of receipt) shall advise Purchaser in writing of the existence of the matters described in clause (i) or (ii), authorize together with the material terms and conditions of such Acquisition Proposal or commit to do request and the identity of the person making any such Acquisition Proposal or request. Shore shall keep Purchaser reasonably well informed in all material respects of the status (including after the occurrence of any material amendment or modification) of any such Acquisition Proposal or request. Without limiting any of the foregoing, Shore shall promptly (and in any event within 48 hours) notify Purchaser in writing if it determines to begin providing non-public information or to engage in negotiations concerning an Acquisition Proposal pursuant to Sections 5.3(a) or (b) of this Agreement and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02In the Merger Agreement, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company Criticare has agreed not to, directly or indirectly: (A) solicitunless and until the Merger Agreement shall have terminated, initiate, seek solicit or knowingly encourage (including by way of furnishing non-public information relating to providing information) the submission of any Acquired Company) any inquiryinquiries, discussion, offer proposals or request offers that constitutesconstitute, or could may reasonably be expected to lead to, an any Acquisition ProposalProposal (as defined below), (B) enter into, continue or otherwise participate to engage in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or otherwise participate in or facilitate, any Acquisition Proposal. Criticare further agreed not to approve, endorse or recommend any Acquisition Proposal. Criticare further agreed to terminate any existing discussions with any person that relate to any Acquisition Proposal or any inquiry or indication of interest that could reasonably be expected to lead to, to an Acquisition Proposal, (C) grant any waiver, amendment Proposal and to request the return or release destruction of any Third Party under any standstill all confidential information provided by or confidentiality agreement; provided that notwithstanding on behalf of Criticare to such persons. Notwithstanding the foregoing, the Company shall be permitted to grant Criticare may furnish information and participate in discussions or negotiations with any person making a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party bona fide Acquisition Proposal prior to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation consummation of the Special Committee) has determined Offer that Criticare's board of directors determines in good faith, after consultation with its outside financial and legal counsel, to be a superior proposal, if the following conditions are met: (a) no breach by Criticare of its obligations related to non-solicitation has contributed to the making of the Acquisition Proposal; (b) Criticare's board of directors determines in good faith, after consultation with its outside legal advisorscounsel, that failure such Acquisition Proposal constitutes or is reasonably likely to take result in a Superior Proposal (as defined below); and (c) Criticare provides at least 24 hour notice to Opto Circuits before taking such action would action. However, prior to disclosing any non-public information to any such person, Criticare must have previously entered into, or must enter into, a confidentiality agreement containing confidentiality undertakings no less favorable to Criticare than the confidential agreement that Criticare executed with Opto Circuits, and Criticare has further agreed to promptly provide to Opto Circuits any information provided to any such person that was not previously provided to Opto Circuits. The Merger Agreement requires Criticare to notify Opto Circuits with 24 hours of the receipt of any Acquisition Proposal or indication of interest that could reasonably be inconsistent expected to lead to an Acquisition Proposal, including the identity of the person making or submitting such Acquisition Proposal, inquiry or indication of interest and the terms thereof. The Merger Agreement also requires Criticare to keep Opto Circuits reasonably and promptly informed on a current basis of the status of any Acquisition Proposal, indication, inquiry or request and any material developments, discussions or negotiations. In addition, Criticare has agreed to use its reasonable best efforts to enforce the provisions of any standstill or confidentiality agreement in connection with its fiduciary duties under Applicable Lawa possible Acquisition Transaction to which it is a party and not to terminate, waive or modify such agreements. The Merger Agreement provides that, except as described above, Criticare may not (Di) approve, endorse, endorse or recommend an Acquisition Proposal or (ii) enter into, or publicly propose to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement intent or other Contract with respect similar document relating to any an Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingTransaction.
Appears in 1 contract
No Solicitation. Except (a) The Company shall immediately cease, and shall cause its officers, directors, employees, investment bankers, attorneys, accountants and other representatives to cease, any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as permitted hereinafter defined) and use its best efforts to obtain the return from all such parties or cause the destruction of all copies of confidential information provided to such parties by this Section 6.02, during the period from Company or its representatives that are still in the possession of such parties. From the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01Time, the Company shall not, and shall (i) cause its Subsidiaries subsidiaries not to, and the respective directors shall cause its officers, directors, employees, investment bankers, attorneys, accountants and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company representatives not to, directly or indirectly: indirectly (Ai) solicit, initiate, seek solicit or knowingly encourage the initiation of (including by way of furnishing non-public information relating to any Acquired Companythat has not been previously publicly disseminated) any inquiry, discussion, offer inquiries or request proposals that constitutesconstitute, or could may reasonably be expected to lead to, an Acquisition Proposal, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or assist or facilitate any Takeover Proposal; provided, however, that could reasonably be expected if, prior to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release the Effective Time and following the receipt of any Third Party under any standstill or confidentiality agreement; provided a Takeover Proposal that notwithstanding the foregoingwas made in circumstances not otherwise involving a breach of this Agreement, the Company shall be permitted to grant a waiver Board of or terminate any “standstill” or similar agreement or obligation Directors of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after considering applicable provisions of state law and after consultation with outside counsel, that a failure to do so would reasonably be expected to constitute a breach by it of its fiduciary duties to its shareholders under applicable law, the Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(b), (x) furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a customary confidentiality agreement (but no less favorable to the Company than the confidentiality agreement entered into with Parent), provided that (i) such confidentiality agreement must include a provision prohibiting solicitation of key employees of the Company or its subsidiaries, such provision lasting at least one year, and may not include any provision calling for an exclusive right to negotiate with the Company and (ii) the Company advises Parent of all such nonpublic information delivered to such person concurrently with its delivery to the requesting party, and (y) participate in negotiations with such party regarding such Takeover Proposal, and (z) prior to the Acceptance Date, following receipt of an unsolicited, bona fide Takeover Proposal from a third party which is a Superior Proposal, enter into an agreement with such third party and terminate this Agreement pursuant to Section 7.1(c)(ii) hereof, if after duly considering the advice of outside financial and outside legal advisorscounsel, the Board of Directors of the Company determines in good faith that failure to take such action do so would reasonably be inconsistent with expected to breach its fiduciary duties to the Company's stockholders under Applicable Lawapplicable law.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 5.2, and subject to the terms of any confidentiality agreement signed prior to the date hereof, the Company shall promptly advise Parent orally and in writing, and in no event later than 48 hours after receipt, if any proposal, offer, inquiry, or other contact is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company in respect of any Takeover Proposal, and shall, in any such notice to Parent, indicate the identity of the person making such proposal, offer, inquiry, or other contact and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a reasonably current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. The Company shall not release any person from, or waive any provision of, any confidentiality or standstill agreement entered into as of the date of this Agreement.
(i) For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person (other than Parent and its subsidiaries, affiliates, and representatives) relating to any (A) direct or indirect acquisition or purchase of assets of the Company and its subsidiaries equal to 15% or more of the Company's consolidated assets or to which 15% or more of the Company's revenues of earnings on a consolidated basis are attributable, or (B) any direct or indirect acquisition of 15% or more of any class of equity securities of the Company, (C) 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 the Company or, (D) approveany merger, endorseconsolidation, recommend share exchange, business combination, recapitalization, liquidation, dissolution or enter intosimilar transaction involving the Company or any assets of the Company and its subsidiaries equal to 15% or more of the Company's consolidated assets or to which 15% or more of the Company's revenues or earnings on a consolidated basis are attributable, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition the transactions contemplated by this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Interlogix Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company (a) General shall not, and nor shall (i) cause it permit any of its Subsidiaries and the respective directors and subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not subsidiaries to, directly or indirectly: indirectly through another person, (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesinformation), or could reasonably be expected take any other action designed to lead tofacilitate, an Acquisition Proposal, any inquiries or the making of any proposal which constitutes a General Takeover Proposal (Bas defined in Section 6.11(e)) enter into, continue or otherwise (ii) participate in any discussions or negotiations withregarding any General Takeover Proposal; provided, however, that if the Board of Directors of General determines in good -------- ------- faith, after consultation with outside counsel, that it is necessary to do so in order to act in a manner consistent with its fiduciary duties to General's stockholders under applicable law, General may, in response to any General Superior Proposal (as defined in Section 6.11(e)) made prior to the General Stockholder Approval, which proposal was not solicited by it and which did not otherwise result from a breach of this Section 6.11(a), and subject to providing prior written notice of its decision to take such action to Berkshire and compliance with Section 6.11(c), (x) furnish information with respect to General and its subsidiaries to any person making a General Superior Proposal pursuant to a customary confidentiality agreement (as determined by General based on the advice of its outside counsel) and (y) participate in discussions or negotiations regarding such General Superior Proposal.
(b) Except as expressly permitted by this Section 6.11, neither the Board of Directors of General nor any committee thereof shall (i) withdraw or modify, or furnish any non-public information relating propose publicly to withdraw or modify, in a manner adverse to Berkshire, the Acquired Companies toapproval or recommendation by such Board of Directors or such committee of the Transactions or this Agreement, (ii) approve or recommend, or afford access propose publicly to the books approve or records or officers of the Acquired Companies torecommend, any Third Party, in each case, with respect toGeneral Takeover Proposal, or that could reasonably be expected (iii) cause General to lead to, an enter into any General Acquisition Proposal, Agreement (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding as defined in Section 6.11(e)). Notwithstanding the foregoing, the Company shall be permitted to grant a waiver Board of or terminate any “standstill” or similar agreement or obligation Directors of any Third Party General, to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined that it determines in good faith, after consultation with its outside financial and outside legal advisorscounsel, that in light of a General Superior Proposal it is necessary to do so in order to act in a manner consistent with its fiduciary duties to General's stockholders under applicable law, may terminate this Agreement solely in order to concurrently enter into a General Acquisition Agreement with respect to any General Superior Proposal, but only at a time that is after the second business day following Berkshire's receipt of written notice advising Berkshire that the Board of Directors of General is prepared to accept a General Superior Proposal, specifying the material terms and conditions of such General Superior Proposal and identifying the person making such General Superior Proposal, all of which information will be kept confidential by Berkshire.
(c) In addition to the obligations of General set forth in paragraphs (a) and (b) of this Section 6.11, General shall immediately advise Berkshire orally and in writing of any request for information or any General Takeover Proposal, the material terms and conditions of such request or General Takeover Proposal and the identity of the person making such request or General Takeover Proposal. General will keep Berkshire reasonably informed of the status and details (including amendments or proposed amendments) of any such request or General Takeover Proposal.
(d) Nothing contained in this Section 6.11 shall prohibit General from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to General's stockholders if, in the good faith judgment of the Board of Directors of General, after consultation with outside counsel, failure so to take such action disclose would be inconsistent with its fiduciary duties obligations under Applicable Lawapplicable law; provided, (D) approve-------- however, endorsethat, recommend neither General nor its Board of Directors nor any committee ------- thereof shall withdraw or enter intomodify, or propose publicly propose to approvewithdraw or modify, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract its position with respect to any Acquisition Proposal other than an Acceptable Confidentiality this Agreement in accordance with Section 6.02(cor the Transactions or approve or recommend, or propose publicly to approve or recommend, a General Takeover Proposal.
(e) (an “Alternative Acquisition For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02Neither the Company, during the period from the date any of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective or affiliates nor its officers, directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not toor affiliates, shall directly or indirectly: (A) , solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or initiate discus sions or negotiations with, or furnish provide any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Partycorporation, partnership, person or other entity or group (other than Parent, any of its affiliates or representatives) concerning any merger, consolidation, tender offer, exchange offer, sale of all or substantial ly all of the Company's assets, sale of shares of capital stock or similar business combination transactions in each case, with respect to, volving the Company or that could reasonably be expected to lead to, any principal operating or busi ness unit of the Company (an "Acquisition Proposal"); PROVIDED, (C) grant HOWEVER, that if, at any waiver, amendment or release time prior to the purchase of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding Shares by Purchaser in the foregoingOffer, the Company shall be permitted to grant a waiver Com pany's Board of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Directors determines in good faith, after receiving formal advice from its financial advisor and outside counsel, that such action is reasonably necessary for the Company Board to comply with its fiduciary duties to the Company's shareholders under applicable law, the Company may, in response to a bona fide written Acquisi tion Proposal which did not result from a breach of this Section 5.8 and which the Board determines is superior to the Offer and which in the event of an all or part cash transaction is not subject to financing (any such bona fide written Acquisition Proposal being referred to as a "Superior Proposal"), (i) furnish information or provide access with respect to the Company and each of its Sub sidiaries to such Person pursuant to a customary confi dentiality agreement (as determined by the Company after consultation with its outside counsel) and (ii) partici ▇▇▇▇ in discussions and negotiations regarding such Acquisition Proposal. In the event that prior to the completion of the Offer, the Company's Board of Directors determines in good faith, after the Company has received a Superior Proposal and after consultation with its financial advisor and outside legal advisorscounsel, that failure it is reason ably necessary to take such action would be inconsistent do so in order to comply with its fiduciary duties to the Company's shareholders under Applicable Lawapplicable law, the Company's Board of Directors may withdraw or modify its approval or recommendation of the Offer, the Merger or this Agreement, approve or recommend a Superior Proposal or terminate this Agreement, provided that prior to any such termination, the Company shall (Di) approvehave given Parent at least two business days notice of the effectiveness of such termination, endorseand (ii) simulta neously with the termination of this Agreement, recommend pay to Parent the termination fee referred to in Section 7.3 hereof. Furthermore, nothing contained in this Section 5.8 shall prohibit the Company or enter into, or publicly propose its Board of Directors from taking and disclosing to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract the Company's shareholders a position with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement a tender or exchange offer by a third party pursuant to Rules l4d-9 and l4e-2(a) pro mulgated under the Exchange Act or from making such disclosure to the Company's shareholders or otherwise which, in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 judgment of the DGCL Board of Directors with the advice of independent legal counsel, may be required under applicable law or rules of any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingstock exchange.
Appears in 1 contract
Sources: Merger Agreement (WHX Corp)
No Solicitation. Except (a) Until the earlier of the Effective Time or the date of termination of this Agreement pursuant to the provisions of Article 8, the Company will not, nor will the Company authorize or knowingly permit any of the Company’s officers, directors or representatives to (directly or indirectly), take any of the following actions with any Person other than Buyer and its designees: (a) solicit, encourage, initiate, entertain, substantially review or participate in any negotiations or discussions with any Person, other than Buyer, rela ting to any offer or proposal (formal or informal, oral, written or otherwise) (an “Acquisition Proposal” ), with respect to any possible Business Combination with the Company; (b) disclose information with respect to the Company, which is not customarily disclosed in the ordinary course of business, to any Person, other than Buyer, relating to (or could be used for the purpose of formulating an offer or proposal with respect to), or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Business Combination with the Company; (c) agree to, enter into a Contract with any Person, other than Buyer, providing for, or approve a Business Combination with the Company; (d) make or authorize any statement, recommendation, solicitation or endorsement in support of any possible Business Combination with the Company, other than by Buyer; or (e) authorize or knowingly permit a Company representative to take any such action; provided, however, that prior to receipt of the approval of this Agreement and the transactions contemplated hereby by the Company Stockholders, the Company may, to the extent required by the fiduciary obligations of the Company’s Board of Directors, as permitted determined in good faith based on the advice of outside legal counsel, in response to any such Acquisition Proposal that was not solicited by this Section 6.02, during the period from Company after the date of this Agreement until and that did not otherwise result from a breach or a deemed breach of this Section 5.2(a), (i) furnish information with respect to the earlier Company to the Person making such proposal pursuant to a confidentiality agreement not less restrictive of the other party (the “Potential Acquiror”) than the Confidentiality Agreement, and (ii) participate in negotiations regarding such proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company, director of the Company or investment banker, attorney or other advisor or representative of the Company whether or not such person is purporting to act on behalf of the Company or otherwise, shall not be deemed to be a breach of this Section 5.2(a) by the Company.
(b) Except as provided in Section 5.2(c), the board of directors of the Company (i) shall recommend to the stockholders of the Company the adoption of this Agreement, (ii) shall not withdraw or modify, in any manner adverse to Buyer, its approval and recommendation of the adoption of this Agreement and (iii) shall not approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) If prior to the Effective Time the board of directors of the Company determines in good faith, after consultation with its financial and outside legal counsel, that any Acquisition Proposal constitutes a Superior Proposal and the board of directors of the Company believes in its good faith judgment, after receiving the advice of its outside legal counsel that failing to terminate this Agreement and enter into a transaction (the “Superior Transaction”) with respect to the Superior Proposal would constitute a breach of its fiduciary duties under applicable law, the Company may take any of the actions prohibited by 5.2(b) and terminate this Agreement and enter into a binding acquisition agreement (an “Acquisition Agreement”) with respect to such Superior Transaction, provided, however, that, prior to any such termination, (i) the Company has provided Buyer three Business Days written notice that it intends to terminate this Agreement pursuant to this Section 5.2(c), identifying the Superior Transaction then determined to be more favorable and the parties thereto and delivering to Buyer a copy of the Acquisition Agreement for such Superior Transaction in the form to be entered into, (ii) the Company causes its legal counsel and its financial advisor to afford Buyer the opportunity, within such three Business Day period, to match the terms of the Superior Transaction and to negotiate with Buyer to make other adjustments in the terms and conditions of this Agreement that would permit the board of directors of the Company to recommend this Agreement as revised, (iii) the Company has not received from Buyer, within three Business Days of Buyer’s receipt of the notice referred to in clause (i), an offer that the board of directors of the Company determines in good faith, after consultation with and taking into account the advice of its outside legal counsel, matches or exceeds such Superior Transaction or is otherwise sufficient to permit the board of directors of the Company to continue to recommend this Agreement, as amended by such offer from Buyer, and the Merger, rather than the Superior Transaction, and (iv) Buyer’s right to match any Superior Transaction shall apply equally with respect to any subsequent increase or other revision of the terms of any Superior Transaction.
(d) The Company shall immediately cease and cause to be terminated any contacts or negotiations with any Person relating to any such transaction or Business Combination. In addition to the foregoing, if the Company receives prior to the Effective Time or the termination of this Agreement in accordance with Section 8.01any offer or proposal (formal or informal, the Company shall notoral, and shall (iwritten or otherwise) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not relating to, directly or indirectly: (A) solicit, initiate, seek any inquiry or knowingly encourage (including by way of furnishing non-public information relating to contact from any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead Person with respect to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant within 24 hours notify Buyer thereof and provide Buyer with the details thereof, including the identity of the Person or Persons making such offer or proposal, and unless otherwise prohibited by a waiver of or terminate any “standstill” Nondisclosure Agreement or similar agreement or obligation in effect on the date hereof, will keep buyer fully informed on a current basis of the status and details of any Third Party such offer or proposal and of any modification to the extent such agreement or obligation prohibits a confidential proposal being made terms thereof; provided, however, that this provision shall not in any way be deemed to limit the obligations of the Company Board or and its representatives set forth in the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingprevious sentence.
Appears in 1 contract
No Solicitation. Except (a) The Company shall immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as permitted by this Section 6.02, during hereinafter defined) and shall seek to have returned to the period from Company any confidential information that has been provided in any such discussions or negotiations. From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company shall not, and nor shall (i) cause it permit any of its Subsidiaries and the respective subsidiaries to, nor shall it authorize or permit any of its officers, directors and officers or employees or any affiliate, investment banker, financial advisor, attorney, accountant or other representative retained by it or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not subsidiaries to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating which has not been previously publicly disseminated), or take any other action designed to facilitate, any Acquired Company) inquiries or the making of any inquiry, discussion, offer or request that proposal which constitutes, or could may reasonably be expected to lead to, an Acquisition Proposal, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Takeover Proposal; provided, however, that if, prior to obtaining the Company Stockholder Approval and following the receipt of a Superior Proposal (as hereinafter defined), or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could a proposal which is reasonably be expected to lead to, an Acquisition to a Superior Proposal, that was made (Cand not solicited) grant any waiver, amendment or release after the date hereof in circumstances not otherwise involving a breach of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingthis Agreement, the Company shall be permitted to grant a waiver Board of or terminate any “standstill” or similar agreement or obligation Directors of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board (or any special committee thereof to which such responsibility shall have been properly delegated in accordance with the Special Committee if the Company Board (acting upon the recommendation requirements of the Special Committeeapplicable law) has determined determines in good faith, after considering applicable provisions of state law and after consultation with its outside financial and outside legal advisorscounsel, that a failure to take such action do so would be inconsistent with constitute a breach of its fiduciary duties to the Company's stockholders under Applicable Lawapplicable law, the Company may, in response to such Takeover Proposal and subject to compliance with Section 7.4(c), (Dx) furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a customary confidentiality agreement, provided that (i) such confidentiality agreement must include a provision prohibiting solicitation of key employees of the Company or its subsidiaries, such provision lasting at least one year, and may not include any provision calling for an exclusive right to negotiate with the Company and (ii) the Company advises Investor of all such nonpublic information delivered to such person concurrently with its delivery to the requesting party, and (y) participate in negotiations with such party regarding such Takeover Proposal. It is agreed that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any of its subsidiaries or any affiliate, director or 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 7.4(a) by the Company.
(b) Except as expressly permitted in this Section 7.4, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Merger Sub and/or Investor, the approval, determination of advisability, or recommendation by such Board of Directors or such committee of this Agreement and the transactions contemplated hereby, including the Merger, (ii) approve, endorse, recommend or enter intodetermine to be advisable, or recommend, or propose publicly propose to approve, endorsedetermine to be advisable, recommend or recommend, any Takeover Proposal or (iii) cause the Company to enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect similar agreement related to any Acquisition Proposal other than an Acceptable Confidentiality Agreement Takeover Proposal. Notwithstanding the foregoing, in the event that prior to obtaining the Company Stockholder Approval the Board of Directors of the Company (or any special committee thereof to which such responsibility shall have been properly delegated in accordance with the requirements of applicable law) determines in good faith, in response to a Superior Proposal that was made (and not solicited) after the date hereof in circumstances not otherwise involving a breach of this Agreement, after considering applicable provisions of state law and after consultation with outside counsel, that the failure to do so would constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors of the Company and the Special Committee may (subject to this and the following sentences and to compliance with Section 6.02(c7.4(a)) (an “Alternative Acquisition Agreement”); (Ex) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 withdraw or modify its approval, determination, or recommendation of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.this Agreement and the
Appears in 1 contract
No Solicitation. Except (a) The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any person or entity conducted heretofore by the Company, its Subsidiaries or any of their respective officers, directors, employees, agents or representatives (collectively, "REPRESENTATIVES") with respect to any proposed, potential or contemplated Acquisition Proposal (as permitted by this defined in Section 6.02, during the period from 5.02(e) hereof).
(b) From and after the date of this Agreement until hereof, without the earlier prior written consent of the Effective Time or the termination of this Agreement in accordance with Section 8.01Purchaser, the Company shall will not, and shall (i) cause will not authorize or permit any of its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other or Representatives of each Acquired Company not to, directly or indirectly: (A) , solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating information) or take any other action reasonably designed to facilitate any Acquired Company) inquiries or the making of any inquiry, discussion, offer proposal which constitutes or request that constitutes, or could would reasonably be expected to lead to, to an Acquisition Proposal.
(c) Notwithstanding any other provision hereof, the Company may engage in discussions or negotiations with a third party who (without any solicitation, initiation or encouragement, directly or indirectly, by or with the Company or any of its Representatives) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Company and its business, properties and assets if, and only to the extent that, (i)(A) the third party has first made a bona fide Acquisition Proposal to the Board of Directors of the Company in writing prior to the date upon which this Agreement and the Merger shall have been approved by the required vote of the Company Shareholders, (B) the Company's Board of Directors concludes in good faith (after consultation with its financial advisor) that the transaction contemplated by such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the party making such Acquisition Proposal, and could, if consummated, reasonably be expected to result in a transaction more favorable to the Company Shareholders from a financial point of view than the Merger contemplated by this Agreement (any such Acquisition Proposal, a "COMPANY SUPERIOR PROPOSAL"), and (C) the Company's Board of Directors shall have concluded in good faith, after considering applicable provisions of state law, and after consultation with outside counsel, that such action is required for the Board of Directors to act in a manner consistent with its fiduciary duties under applicable law; (ii) the Company (A) shall as promptly as practicable notify Purchaser (1) that the Company has received a bona fide Acquisition Proposal from a third party, (2) that the Company is permitted to furnish information to, or to enter into, continue or otherwise participate in any into discussions or negotiations with, or furnish any non-public information relating such third party pursuant to the Acquired Companies toclause (i) of this Section 5.02(c), or afford access to the books or records or officers and (3) of the Acquired Companies toidentity of the third party making such Acquisition Proposal and of all the terms and conditions of such proposal, any Third Party, in each case, with respect to, or that could and (B) shall keep Purchaser reasonably be expected to lead to, an informed of the status and material terms of such Acquisition Proposal; and (iii) the Company shall promptly advise the third party making such Acquisition Proposal that the Company will not participate in negotiations or discussions with or provide information to such Person, unless and until such person authorizes the Company to comply with clause (Cii) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding this Section 5.02(c).
(d) Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by a director or an officer of the Company or any of its Subsidiaries, or any investment banker, attorney or other Representative of the Company or any of its Subsidiaries, whether or not such person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be permitted deemed to grant be a waiver breach of or terminate any “standstill” or similar agreement or obligation of any Third Party to this Section 5.02 by the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingCompany.
Appears in 1 contract
Sources: Merger Agreement (Rappaport Gary B)
No Solicitation. Except Until the earlier to occur of such date and time as permitted (such date, the “Termination Date”),
(i) the Merger becomes effective,
(ii) the Merger Agreement shall have been validly terminated by this Parent,
(iii) the Merger Agreement and the Merger shall have been submitted to the stockholders of the Company at a duly convened meeting of the stockholders for the purpose of approving the Merger Agreement and the Merger and the required approval of the stockholders of the Company contemplated by the Merger Agreement shall not have been obtained by reason of the failure to obtain the required vote at such meeting or at any adjournment thereof,
(iv) the Merger Agreement shall have been validly terminated by the Company pursuant to Sections 7.1(a), (b), (c) or (f) of the Merger Agreement,
(v) the Merger Agreement shall have been validly terminated by the Company pursuant to Section 6.027.1(i) and Parent shall not have required the Company to submit the Merger Agreement to the stockholders of the Company pursuant to Section 5.2 of the Merger Agreement, during the period from the date of and
(vi) this Agreement until the earlier of the Effective Time or the termination of this Agreement shall have been terminated prior to Completion in accordance with Section 8.017(b), the Company Seller agrees that it shall not, and that it shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its all reasonable best efforts to cause the other Representatives Seller's employees, agents and representatives (including any investment banker, attorney or accountant retained by Seller) not to (and shall not authorize any of each Acquired Company not them to), directly or indirectly: (Ai) solicit, initiate, seek solicit or initiate or knowingly encourage encourage, facilitate or induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (including by way of furnishing ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constituteswith respect to, or could take any other action to knowingly encourage or facilitate any inquiries or the making of any proposal that constitutes or would reasonably be expected to lead to, an any Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (Diii) approve, endorse, recommend or make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal, (iv) issue a public statement that Seller supports any other Acquisition Proposal or (v) execute or enter into, or publicly propose to approve, endorse, recommend execute or enter into, any letter of intent, memorandum of understandingintent or similar document or any contract, agreement in principle, acquisition agreement, merger agreement or other Contract with respect commitment contemplating or otherwise relating to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingtransaction contemplated thereby.
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02, during the period from (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01Termination Date, the Company shall will not, and shall (i) will cause its Subsidiaries and the respective directors and officers officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (collectively, the “Representatives”) of each Acquired the Company and (ii) instruct and use or any of its reasonable best efforts to cause the other Representatives of each Acquired Company Subsidiaries not to, directly or indirectly: :
(Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate engage in any discussions or negotiations with, or furnish regarding an Acquisition Proposal;
(ii) disclose any non-public information relating to the Acquired Companies toCompany or any of its Subsidiaries, or their businesses, assets, liabilities or prospects or afford access to the properties, books or records or officers of the Acquired Companies Company or any of its Subsidiaries to, any Person regarding an Acquisition Proposal; or
(iii) enter into any letter of intent, agreement in principal, acquisition agreement or similar agreement relating to an Acquisition Proposal; provided that, prior to obtaining the Company Stockholders’ Approval, the Company may negotiate or otherwise engage in discussions with, and furnish non-public information relating to the Company or any of its Subsidiaries, or their businesses, assets, liabilities or prospects or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person (a “Third Party, ”) who delivers an unsolicited written bona fide Acquisition Proposal that the board of directors of the Company determines in each case, with respect to, or that good faith could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release to a Superior Proposal if the board of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, directors of the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, faith (after consultation with its the Company’s outside financial and outside legal advisors, counsel) that the failure to take such action would be inconsistent with is reasonably likely to constitute a breach of its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose applicable laws; provided further that the Company can furnish non-public information to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any a Third Party from only after giving Purchaser written notice of such determination. The Company shall provide all such information to Purchaser prior to or concurrently with the restrictions on “business combinations” contained in Section 203 of time such information is provided to the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions Third Party, to the extent not already provided to apply or (F) resolve, agree, authorize or commit to do any of the foregoingPurchaser.
Appears in 1 contract
Sources: Merger Agreement (Variflex Inc)
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the (a) The Company shall not, and nor shall (i) cause its Subsidiaries and it authorize or permit any Company Subsidiary or any Representative of the respective directors and officers Company or of each Acquired any Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not Subsidiary to, directly or indirectly: , (Ai) solicit, initiateinitiate or encourage, seek or knowingly encourage take any other action intended to facilitate (including by way of furnishing non-public information relating information), the submission to the Company of any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Takeover Proposal, (Bii) enter into any agreement with respect to any Takeover Proposal (other than a confidentiality agreement as referenced below in this paragraph (a)), or (iii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public person any information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or take any other action intended to facilitate any inquiries or the making of any proposal that could constitutes, or would reasonably be expected likely to lead to, an Acquisition Proposalany Takeover Proposal to which the Company or any Company Subsidiary is a party. Notwithstanding the foregoing, prior to obtaining the Company Stockholder Approval, the Board of Directors may take any or all of the following actions in response to a Superior Proposal that was unsolicited and that did not result from a breach of this Section 6.02(a), provided that the Company complies with Section 6.02(b), (Cc) grant any waiverand (d) and the Board of Directors determines in good faith (after consultation with outside counsel) that such Takeover Proposal is or would be reasonably likely to result in, amendment or release a Superior Proposal and that such actions are required in order for the Board of any Third Party under any standstill or Directors to fulfill its fiduciary duties: (A) furnish information with respect to the Company to the person making such Superior Proposal and such person's Representatives pursuant to a customary confidentiality agreement; provided that notwithstanding if such confidentiality agreement contains provisions that are less restrictive than the foregoingcomparable provisions in, or omits restrictive provisions contained in, the Confidentiality Agreements, then the Confidentiality Agreements shall be deemed amended to contain only such less restrictive provisions or to omit such restrictive provisions, as the case may be, and that the Company shall also provide to Parent any information not previously provided to Parent that is provided to such other person, and (B) participate in discussions or negotiations with the person making such Superior Proposal and its Representatives regarding such Superior Proposal. In such event, the Company shall be permitted to grant a waiver shall, (x) within 24 hours of actual receipt of such Superior Proposal by the Company or terminate any “standstill” Company Subsidiary or similar agreement any Representative of the Company or obligation of any Third Party Company Subsidiary, and not less than 48 hours prior to furnishing any such information or participating in any such discussions, inform Parent of the material terms and conditions of such Superior Proposal, (y) promptly inform Parent of the substance of any discussions with such person or such person's Representatives relating to such Superior Proposal and (z) promptly keep Parent fully informed of the status, including any change to the extent details, of any such agreement Superior Proposal.
(b) Except as set forth in this Section 6.02(b), neither the Board of Directors nor any Board Committee shall withdraw or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter intomodify, or publicly propose to approvewithdraw or modify, endorsein a manner adverse to Parent or Merger Sub, the approval or recommendation by the Board of Directors or any Board Committee of this Agreement or the Transactions; provided, however, that prior to the Company Stockholder Approval, the Board of Directors or a Board Committee may withdraw or modify its approval of the Transactions, approve or recommend a Superior Proposal, or enter into, any letter of intent, memorandum of understanding, into an agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition a Superior Proposal, in each case if (i) the Company has received a Superior Proposal other than an Acceptable Confidentiality Agreement which is pending at the time the Company determines to take such action, (ii) the Board of Directors has determined in accordance good faith (after consultation with Section 6.02(coutside counsel) that such action is required in order for the Board to fulfill its fiduciary duties, (an “Alternative Acquisition Agreement”); (Eiii) take any action to exempt any Third Party at least three business days have passed following Parent's receipt of written notice from the restrictions on “Company advising Parent that the Board of Directors has received such Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and taking into account any new offer that Parent makes to the Company within this three business combinations” contained day period, the Board of Directors maintains its determination described in clause (ii) of this paragraph (b), and (iv) the Company pays the Topping Fee if and when required under Section 203 9.02.
(c) In addition to the obligations of the DGCL Company set forth in paragraphs (a) and (b) of this Section 6.02, the Company shall promptly (and in no event later than 48 hours after actual receipt by the Company or any Company Subsidiary or any Representative of the Company or of any Company Subsidiary) advise Parent orally and in writing of the Company's receipt of any Takeover Proposal and the terms and conditions of such Takeover Proposal (including any subsequent amendment or other applicable Takeover Statute modification to such terms and conditions).
(d) Nothing in this Section 6.02 shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or otherwise cause such restrictions not to apply Item 1012(a) of Regulation M-A under the Exchange Act or (Fii) resolve, agree, authorize or commit making any disclosure to do any the Company's security holders if in the good faith judgment of the foregoingBoard of Directors, after consultation with outside counsel, disclosure would be required under applicable Law or would be required in order for the Board of Directors to fulfill its fiduciary duties.
(e) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02(a) The Company will, during the period from the date of this Agreement until the earlier of the Effective Time and will cause its Affiliates and its and their respective officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives and agents to, immediately cease any existing discussions or the termination of this Agreement in accordance negotiations, if any, with Section 8.01, the any parties (other than Purchaser and Parent) with respect to any Company Takeover Proposal. The Company shall not, and it shall ensure that its Affiliates and its or their respective officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives or agents do not, directly or indirectly (i) cause its Subsidiaries and solicit, initiate or encourage, or take any other action designed or reasonably likely to facilitate, any inquiries with respect to, or the respective directors and officers making of each Acquired any proposal which constitutes or reasonably may give rise to, any Company and Takeover Proposal, (ii) instruct and use its reasonable best efforts provide any information with respect to cause the Company to any Person, other Representatives than Purchaser, relating to a possible Company Takeover Proposal by any Person, (iii) enter into any letter of each Acquired Company not intent, agreement in principle, acquisition agreement or other similar agreement constituting or related to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected likely to lead to, an any Company Takeover Proposal (each, a “Company Acquisition ProposalAgreement”), (Biv) enter into, continue or otherwise participate in any discussions or negotiations with(whether initiated by the Company or not) regarding any Company Takeover Proposal, or (v) make or authorize any statement, recommendation or solicitation in support of any possible Company Takeover Proposal; provided, however, that if, at any time prior to the date on which Purchaser purchases Shares pursuant to the Offer (the “Offer Completion Date”), (1) the Company has received an unsolicited Company Takeover Proposal that did not result from a breach of this Section 5.5(a), and (2) the Company Board determines in good faith, based upon and in conformity with the written opinion of its independent financial advisors and independent outside legal counsel, that (A) such Company Takeover Proposal constitutes a Superior Proposal, and (B) failure to do so would result in a breach of its fiduciary duties to the Shareholders under Delaware Law, then the Company may, in response to such Superior Proposal, (x) furnish information with respect to the Company and each of its Subsidiaries to the Person making such Company Takeover Proposal pursuant to a customary confidentiality agreement not more favorable to the recipient of such information than the Confidentiality Agreement (it being understood that such confidentiality agreement shall not prohibit disclosure to Purchaser of any non-public of the information and materials required to be disclosed or provided to Purchaser pursuant to Section 5.5(c)), and (y) participate in negotiations with such Person regarding such Superior Proposal to the extent required by the fiduciary duties of the Company Board regarding such Company Takeover Proposal under Delaware Law. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.5(a) by any director, officer or employee of the Company or the Company’s Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of the Company or the Company’s Subsidiaries shall be deemed to be a breach of this Section by the Company.
(b) Except as expressly permitted by this Section 5.5(b), neither the Company Board nor any committee thereof may (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Company Board or such committee of the Offer, the Merger or this Agreement, (ii) approve or recommend, propose publicly to approve or recommend, or otherwise permit or cause the Company to accept or enter into any Company Takeover Proposal or Company Acquisition Agreement, (iii) release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, or (iv) agree or resolve to take actions set forth in clauses (i) through (iii) of this sentence. Notwithstanding the foregoing, in the event that the Company Board determines in good faith that (1) the Company has received an unsolicited Superior Proposal that did not result from a breach of Section 5.5(a), and (2) based upon and in conformity with the written opinion of its independent outside legal counsel, failure to do so would result in a breach of its fiduciary duties to the Shareholders under Delaware Law, the Company Board may withdraw or modify its approval or recommendation of the Offer, the Merger or this Agreement, approve or recommend such Superior Proposal, or terminate this Agreement pursuant to Section 7.3(c); provided, however, that the Company may not exercise its right to terminate this Agreement pursuant to this Section 5.5 or Section 7.3(c) until after the fifth (5th) Business Day following Purchaser’s receipt of written notice from the Company advising Purchaser that the Company Board intends to take such action and specifying the reasons therefor, including, without limitation, the information and materials to be provided pursuant to Section 5.5(c) relating to the Acquired Companies to, or afford access Superior Proposal that is the basis of the Company Board’s proposed action. Any material amendment to the books or records or officers terms of any Superior Proposal shall require a new notice to Purchaser and a new five (5) Business Day period. The Company Board shall take into account any material changes to the terms of this Agreement proposed by Purchaser in response to any such notice in determining whether to terminate this Agreement and shall negotiate in good faith with Purchaser during the period prior to any such termination.
(c) In addition to the obligations of the Acquired Companies toCompany set forth in Sections 5.5(a) and 5.5(b), the Company will (i) promptly, and in any Third Partyevent within two (2) Business Days, advise Purchaser orally and in each casewriting of any request for information or of any Company Takeover Proposal, with respect to, the financial and other material terms and conditions of such request or that could reasonably be expected to lead to, an Acquisition Company Takeover Proposal and the identity of the Person making such request or Company Takeover Proposal, (Cii) grant any waiver, amendment keep Purchaser reasonably informed of the status and details (including amendments or release proposed amendments) of any Third Party and all such requests or Company Takeover Proposals, and (iii) provide to Purchaser as soon as practicable after receipt or delivery thereof (and in any event within two (2) Business Days) copies of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Company Takeover Proposal or inquiry or sent or provided by the Company to any third party in connection with any Company Takeover Proposal or inquiry.
(d) Nothing contained in this Section 5.5 will prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act; provided, however, that neither the Company nor the Company Board nor any standstill committee thereof may, except as expressly permitted by this Section 5.5, withdraw or confidentiality agreement; provided that notwithstanding modify, or propose publicly to withdraw or modify, its position with respect to the foregoingOffer, this Agreement or the Merger or approve or recommend, or propose publicly to approve or recommend, a Company Takeover Proposal.
(e) Nothing contained in this Section 5.5 shall permit the Company to enter into any Company Acquisition Agreement or other agreement with respect to Company Takeover Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, the Company shall be permitted to grant not enter into any agreement with any Person that provides for, or in any way facilitates, a waiver of or terminate any “standstill” or similar Company Takeover Proposal, other than a confidentiality agreement or obligation of any Third Party containing terms no more favorable to the extent such agreement or obligation prohibits a confidential proposal being made to Person making the Company Board or Takeover Proposal than those applicable to Purchaser under the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02, during (a) During the period from commencing on the date of this Agreement hereof and continuing until the earlier of the Effective Time Termination Date, Colombia agrees that neither it nor its affiliates, advisors or the termination of this Agreement in accordance with Section 8.01, the Company shall not, and shall representatives (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not toincluding any person or entity, directly or indirectly: , through one or more intermediaries, controlled by or under common control with Colombia) will, directly or indirectly, (Ai) solicit, initiate, seek solicit or knowingly encourage otherwise facilitate (including by way of furnishing information), initiate, knowingly encourage, engage in or respond to any inquiries or proposals regarding an Acquisition Proposal, (ii) knowingly encourage any Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal, (iv) agree to, approve or recommend an Acquisition Proposal, (v) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any manner, the approval or recommendation of the Colombia board of directors or any committee thereof of this Agreement; (vi) approve or recommend, or remain neutral with respect to, or propose publicly to approve or recommend, or remain neutral with respect to, any Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal until 15 calendar days following the formal commencement of such Acquisition Proposal shall not be considered to be in violation of this Section 7.1), or (vii) enter into any agreement related to an Acquisition Proposal; provided, however, that subject as hereinafter provided, nothing shall prevent Colombia from furnishing non-public information to, or entering into a confidentiality agreement and/or participating in discussions or negotiations with, any person in response to a bona fide unsolicited written Acquisition Proposal received at any time prior to obtaining the Colombia Required Vote that:
(i) did not result from a breach of any agreement between the person making such Acquisition Proposal and Colombia or any of the Colombia Subsidiaries, or this Section 7.1;
(ii) involves not less than 100 percent of the outstanding Colombia Common Shares or all or substantially all of the consolidated assets of Colombia; and
(iii) in respect of which the Colombia board of directors determines in its good faith judgment, after consultation with its financial advisors and its outside counsel, that there is a substantial likelihood that any required financing will be obtained and that the Acquisition Proposal would, if consummated in accordance with its terms, result in a transaction that: (A) is reasonably capable of completion in accordance with its terms without undue delay, taking into account all legal, financial, regulatory and other aspects of such Acquisition Proposal and the person making such Acquisition Proposal and (B) is more favourable to Colombia Shareholders than the Arrangement, (any such Acquisition Proposal being referred to herein as a “Superior Proposal”).
(b) Colombia shall promptly (and in any event within 24 hours) notify Medoro, first orally and then in writing, of any Acquisition Proposal which any director, senior officer or agent thereof is or becomes aware of, any amendment to any such proposal or any request for non-public information relating to Colombia or the Colombia Subsidiaries. Such notice shall include a description of the material terms and conditions of any Acquired Company) any such Acquisition Proposal and the identity of the person making such proposal, inquiry, discussion, offer request or request that constitutes, contact.
(c) Nothing contained in this Section 7.1 shall prohibit Colombia from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the 1934 Act or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers Section 95 of the Acquired Companies toSecurities Act (Ontario) (or any equivalent requirements under the securities laws of other Canadian provinces) from making any disclosure to Colombia’s stockholders, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation board of the Special Committee) has determined directors of Colombia determines in good faith, after consultation with its outside financial and outside legal advisors, faith that failure it is required to take such action would be inconsistent with do so by its fiduciary duties under Applicable applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02, during From the period from the date of this Agreement Date until the earlier of the Effective Time or and the termination of this Agreement in accordance with Article VII, and except as permitted by this Section 8.015.3, the Company shall not, and shall (i) cause its the Company Subsidiaries and the its and their respective directors and officers of each Acquired Company not to, and (ii) instruct and use its reasonable best efforts to cause the shall direct other Representatives of each Acquired Company not to, directly or indirectly: :
(Ai) solicit, initiate, seek solicit or knowingly encourage (including by way or knowingly facilitate any inquiries or the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, proposal or offer or request that constitutes, or could would reasonably be expected to lead to, an any Acquisition Proposal, Proposal (Bother than discussions solely to inform such Person of the provisions contained in this Section 5.3(a));
(ii) enter intoengage in, continue or otherwise participate in any discussions (other than, in response to an unsolicited inquiry from any Person relating to an Acquisition Proposal, informing such Person of the provisions contained in this Section 5.3(a)) or negotiations withregarding, or furnish provide any non-public information or data to any Person relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, Acquisition Proposal or any proposal or offer that could would reasonably be expected to lead to, to an Acquisition Proposal;
(iii) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal; or
(iv) except as permitted by Section 5.3(e), (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend recommend, or execute or enter into, or publicly propose to approve, endorse, recommend or enter into, into any letter of intent, agreement in principle, term sheet, memorandum of understanding, agreement in principlemerger agreement, acquisition agreement, merger joint venture agreement or other similar Contract with respect relating to any an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(cAgreement) (an “Alternative Acquisition Agreement”); . As soon as reasonably practicable after the date of this Agreement, the Company shall deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making an Acquisition Proposal within the one hundred eighty (E180) take days prior to the Agreement Date requesting the prompt return or destruction of all confidential information previously furnished to any action Person within the one hundred eight (180) days prior to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 Agreement Date for the purposes of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingevaluating a possible Acquisition Proposal.
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company (a) The parties hereto shall not, and shall cause their Subsidiaries (including, in the case of the Selling Parties, the Company) and their respective Representatives and Subsidiaries not to (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek initiate or knowingly encourage (including by way any inquiries or the making of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, proposal regarding any Alternative Transaction or could reasonably be expected to lead to, an Acquisition Proposal, (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any non-public person any nonpublic information relating to the Acquired Companies toCompany in connection with, or afford access to the books otherwise cooperate with a person or records group making any offer or officers of the Acquired Companies to, proposal regarding any Third Party, in each case, with respect to, Alternative Transaction or that could reasonably be expected to lead to, an Acquisition Proposal, (Ciii) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend execute or enter into, or publicly propose to approve, endorse, recommend or enter into, into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other similar Contract constituting, providing for or related to any Alternative Transaction other than, in the case of the Selling Parties, in connection with the termination of this Agreement as provided for in Section 8.01(g).
(b) Notwithstanding the provisions of Section 5.13(a), in response to a bona fide inquiry, proposal or offer relating to any Alternative Transaction received after the date of this Agreement and prior to July 22, 2007 (the “Initial Window Termination Date”), and such bona fide inquiry, proposal or offer was unsolicited after the date of this Agreement, the Selling Parties may furnish information relating to the Company and its Subsidiaries (so long as all such Table of Contents information has previously been made available to the Purchasing Parties or is made available to the Purchasing Parties prior to or concurrently with the time it is made available to such person or group), or enter into discussions or negotiations with, the person or group that has made such unsolicited bona fide inquiry, proposal or offer (the “Potential Acquirer”) provided that each of the following conditions are met: (i) such person or group first executes a confidentiality agreement substantially in the form of, and with terms no less favorable to the Selling Parties than, the Confidentiality Agreement, (ii) the Selling Parties and their Subsidiaries have theretofore complied with this Section 5.13 in all respects, (iii) the Board of Directors of Seller Parent determines in good faith (after consultation with its outside financial advisor and outside counsel) that such unsolicited bona fide inquiry, proposal or offer constitutes or is reasonably likely to lead to a Superior Transaction and (iv) the Selling Parties have provided the Purchasing Parties with prior written notice (any such notice, a “Potential Superior Transaction Notice”) (A) that any information is requested or any discussions or negotiations are sought to be initiated relating to an Alternative Transaction, (B) of the identity of the Potential Acquirer and any other terms of such request, inquiry or Alternative Transaction (which notice shall include any written materials containing such communication) and (C) of its intent to take any such action.
(c) Without limiting Section 5.13(a), if the Selling Parties or any of their respective Affiliates or any of their respective Representatives participates in discussions or negotiations with, or provides information to, a Potential Acquirer, the Selling Parties will keep the Purchasing Parties advised on a substantially current basis of any material developments with respect thereto.
(d) The Selling Parties shall, and shall cause their respective Affiliates and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions, or negotiations with any persons other than the Purchasing Parties and their Affiliates conducted prior to the date hereof with respect to any Acquisition Proposal Alternative Transaction.
(e) For purposes of this Agreement, “Alternative Transaction” means any (i) direct or indirect acquisition (other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 acquisition of the DGCL shares of Seller Parent) of any of the Shares or any other applicable Takeover Statute voting or otherwise cause such restrictions not to apply equity interest in the Company by any person (including by means of a spin-off, split-off or public offering), (Fii) resolvemerger, agreeconsolidation, authorize recapitalization, liquidation, dissolution or commit to do any similar transaction directly or indirectly involving the Company, (iii) direct or indirect sale or other disposition of all or a substantial portion of the foregoingassets of the Company, and (iv) other transaction that would reasonably be expected to impede, interfere with, prevent, materially delay or limit the economic benefit to the Purchasing Parties of, the transactions contemplated by this Agreement; provided, however, that the term Alternative Transaction shall not include a transaction contemplated by a Parent Acquisition Proposal.
Appears in 1 contract
No Solicitation. (a) The Company and the Company Subsidiary shall, and shall cause their respective directors, officers, employees, investment bankers, financial advisors, attorneys, brokers, accountants, agents and other agents, advisors or representatives (collectively, "REPRESENTATIVES") to, (i) immediately cease and cause to be terminated any discussions or negotiations that commenced prior to the date of this Agreement with respect to a Takeover Proposal and (ii) promptly request that all such Persons with whom the Company had discussions or negotiations regarding a Takeover Proposal during the prior year return or destroy all copies of confidential information previously provided to such parties by the Company, the Company Subsidiary or Representatives to the extent any confidentiality agreement with such Person so provides or allows. Nothing in this SECTION 6.8(A) shall in any way limit or modify any of the Company's rights under the other provisions of this SECTION 6.8.
(b) Except as permitted by set forth in this Section 6.02SECTION 6.8, during the period from the date of this Agreement until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with Section 8.01its terms, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Company Subsidiary and their respective Representatives of each Acquired Company not to, nor shall it authorize or permit any Representative to, directly or indirectly: , (Ai) solicit, initiate, seek knowingly facilitate or knowingly encourage (including by way the submission of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Takeover Proposal, (Bii) enter intointo any agreement, agreement-in-principle or letter of intent providing for or accept any Takeover Proposal, or (iii) participate. engage in, or continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any Person any non-public information for the purpose of encouraging or facilitating, any Takeover Proposal; PROVIDED, HOWEVER, that (A) the Company may refer any third party to this SECTION 6.8 and (B) if in response to a BONA FIDE written Takeover Proposal made after the date of this Agreement that did not result from a breach of this SECTION 6.8, and subject to compliance with SECTION 6.8(C), the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal and such action is likely to be required in order for the directors to comply with their fiduciary duties under applicable law, then the Company may at any time prior to the Acceptance Time (but in no event after such time) do any or all of the following: (X) furnish information with respect to the Company and the Company Subsidiary to the Person making such Takeover Proposal and its Representatives, but only pursuant to a confidentiality agreement not materially less restrictive with respect to confidentiality of the other party than the Confidentiality Agreement (except that such confidentiality agreement shall contain additional provisions that expressly permit the Company to comply with the provisions of SECTION 6.8(C)), PROVIDED that (1) such confidentiality agreement may not include any provision calling for an exclusive right to negotiate with the Company and (2) concurrently with its delivery to such Person, the Company delivers or makes available to Parent all such information not previously provided to Parent; (Y) participate or engage in discussions or negotiations (including the solicitation of revised Takeover Proposals) with such Person and its Representatives and its potential financing sources regarding such Takeover Proposal or (Z) amend, or grant a waiver or release under, any standstill or similar agreement with respect to any Company Common Stock with any such Person. The Company shall be deemed to be in breach of the provisions of this SECTION 6.8 upon the breach of any such provisions by the Company Subsidiary or the Company's Representatives.
(c) The Company shall as promptly as practicable, and in any event within 24 hours, advise Parent orally and in writing of the Company's receipt of any written Takeover Proposal, and shall, in any such notice to Parent, indicate the identity of the Person making such Takeover Proposal and the material terms and conditions of such Takeover Proposal (and shall include with such notice copies of any written materials received from or on behalf of such Person relating to such Takeover Proposal), and thereafter shall promptly keep Parent reasonably informed of all material developments affecting the Acquired Companies tostatus and terms of any such Takeover Proposal (and the Company shall provide or make available to Parent copies of any additional material documents regarding such Takeover Proposal received by the Company from the Person making such Takeover Proposal or such Person's Representatives).
(d) Except as set forth in this SECTION 6.8, neither the Company Board nor any committee thereof shall (i) withdraw or modify, or afford access propose publicly to withdraw or modify, the Board Recommendation or (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal (it being understood that taking a neutral position or no position with respect to any Takeover Proposal that is a tender offer after five (5) Business Days after the commencement of such tender offer shall be considered an adverse modification) (any action described in clause (i) or (ii) being referred to as a "COMPANY ADVERSE RECOMMENDATION CHANGE"). Notwithstanding anything to the books contrary set forth in this Agreement, the Company or records the Company Board may, prior to the Acceptance Time (A) withdraw or officers of the Acquired Companies to, any Third Party, in each case, with respect tomodify, or publicly propose to withdraw or modify, the Board Recommendation, (B) approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal that could reasonably be expected to lead toconstitutes a Superior Proposal and that did not result from a material breach of this SECTION 6.8, an Acquisition Proposal, or (C) grant enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal, if, in any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingsuch case, the Company Board determines in good faith, after consulting with outside counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law.
(e) Nothing in this SECTION 6.8 or in SECTION 6.4 or elsewhere in this Agreement shall be permitted to grant a waiver of prohibit the Company or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board from (i) taking and disclosing to the Company's stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A under the Special Committee Exchange Act, or from issuing a "stop, look and listen" statement pending disclosure of its position thereunder, or (ii) from making any disclosure to the Company's stockholders if in each case under this clause (ii) the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and outside legal advisorscounsel, that failure to take such action do so would be inconsistent with its fiduciary duties obligations under Applicable applicable Law; PROVIDED, (D) approveHOWEVER, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement that in principle, acquisition agreement, merger agreement no event shall the Company Board or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) committee thereof take any action to exempt any Third Party from prohibited by SECTION 6.8(D) except as permitted by the restrictions on “business combinations” contained in Section 203 terms of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingSECTION 6.8(D).
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01, the Company PFI shall not, and nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to:
(ia) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not toinitiate, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutesinformation), or could reasonably be expected take any other action to lead tofacilitate, any inquiries or the making of any proposal which constitutes any Acquisition Proposal (as defined herein);
(b) enter into or maintain or continue discussions or negotiate with any person in furtherance of an Acquisition Proposal, ; or
(Bc) enter into, continue agree to or otherwise participate in endorse any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, . PFI shall (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faithunless it believes, after consultation with its outside counsel, that such notification would violate the PFI Board of Directors' fiduciary duties) notify NPB as promptly as practicable, in reasonable detail, as to any inquiries and proposals which it or any of its representatives or agents may receive; provided, however, that, notwithstanding anything to the contrary contained in this Agreement:
(i) PFI may furnish or cause to be furnished confidential and non-public information concerning PFI and its businesses, properties or assets to a third party;
(ii) PFI may engage in discussions or negotiations with a third party;
(iii) following receipt of an Acquisition Proposal, PFI may take and disclose to its shareholders a position with respect to such Acquisition Proposal; and/or
(iv) following receipt of an Acquisition Proposal, the PFI Board of Directors may withdraw or modify its recommendation of the Merger; but in respect of the foregoing clauses (i) through (iv) only if the PFI Board of Directors shall conclude in good faith after consultation with its legal and financial and outside legal advisors, that failure to take do so would result in a breach by such action would be inconsistent with its directors of their fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingPFI's shareholders.
Appears in 1 contract
No Solicitation. Except The Company shall immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as permitted by this Section 6.02, during hereinafter defined) and shall seek to have returned to the period from Company any confidential information that has been provided in any such discussions or negotiations. From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.01hereof, the Company shall not, and nor shall (i) cause it permit any of its Subsidiaries and the respective subsidiaries to, nor shall it authorize or permit any of its officers, directors and officers or employees or any affiliate, investment banker, financial advisor, attorney, accountant or other representative retained by it or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not subsidiaries to, directly or indirectly: , (Ai) solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating which has not been previously publicly disseminated), or take any other action designed to facilitate, any Acquired Company) inquiries or the making of any inquiry, discussion, offer or request that proposal which constitutes, or could may reasonably be expected to lead to, an Acquisition Proposal, any Takeover Proposal or (Bii) enter into, continue or otherwise participate in any discussions or negotiations withregarding any Takeover Proposal; provided, or furnish any non-public information relating -------- however, that if, prior to the Acquired Companies to, Expiration Date and following the receipt of a ------- Superior Proposal (as hereinafter defined) or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could a proposal which is reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release to a Superior Proposal that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoingthis Agreement, the Company shall be permitted to grant a waiver Board of or terminate any “standstill” or similar agreement or obligation Directors of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after considering applicable provisions of state law and after consultation with its outside financial and outside legal advisorscounsel, that a failure to take such action do so would be inconsistent with constitute a breach of its fiduciary duties to the Company's shareholders under Applicable Lawapplicable law, the Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(c), (Dx) furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a customary confidentiality agreement, provided that (i) such confidentiality agreement must include a provision prohibiting solicitation of key employees of the Company or its subsidiaries, such provision lasting at least one year, and may not include any provision calling for an exclusive right to negotiate with the Company and (ii) the Company advises Parent of all such nonpublic information delivered to such person concurrently with its delivery to the requesting party, and (y) participate in negotiations with such party regarding such Takeover Proposal. It is agreed that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any of its subsidiaries or any affiliate, director or investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries, if known by the Company, shall be deemed to be a breach of this Section 5.2(a) by the Company. Except as expressly permitted in this Section 5.2, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval, determination of advisability, or recommendation by such Board of Directors or such committee of the Transactions, (ii) approve, endorse, recommend or enter intodetermine to be advisable, or recommend, or propose publicly propose to approve, endorsedetermine to be advisable, recommend or recommend, any Takeover Proposal or (iii) cause the Company to enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract with respect similar agreement (each, an "Acquisition Agreement") related to any Acquisition Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Expiration Date the Board of Directors of the Company determines in good faith, in response to a Superior Proposal other than an Acceptable Confidentiality Agreement that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of this Agreement, after considering applicable provisions of state law and after consultation with outside counsel, that the failure to do so would constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors of the Company may (subject to this and the following sentences and to compliance with Section 5.2(a)) (x) withdraw or modify its approval, determination, or recommendation of the Transactions or (y) approve, determine to be advisable, or recommend a Superior Proposal, provided, however, that any actions described in clause (y) may be taken only at -------- ------- a time that is after the second business day following Parent's receipt of written notice from the Company advising Parent that the Board of Directors of the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal and providing notice of the determination of the Board of Directors of the Company of what action referred to in clause (y) the Board of Directors of the Company has determined to take. In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.2, the Company shall promptly advise Parent orally and in writing of any request for confidential information or of any Takeover Proposal, the material terms and conditions of such request or the Takeover Proposal and the identity of the person making such request or Takeover Proposal and shall keep Parent reasonably informed of the status and details of any such request or Takeover Proposal. Nothing contained in this Section 5.2 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders; provided, however, neither the Company -------- ------- nor its Board of Directors nor any committee thereof shall, except as in accordance with Section 6.02(c) (an “Alternative Acquisition 5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination or recommendation with respect to the Transactions or approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal. For purposes of this Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.:
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02(a) The Company agrees that, during the period from the date of this Agreement until the earlier of prior to the Effective Time or the termination of this Agreement in accordance with Section 8.01Time, the Company it shall not, and shall (i) cause its not authorize or permit any Company Subsidiaries and the respective directors and officers or any of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not totheir Representatives, directly or indirectly: (A) , to solicit, initiate, seek initiate or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations withinquiries or the making of any proposal with respect to any merger, consolidation or furnish any non-public information relating to other business combination involving the Acquired Companies to, Company or afford access to the books Company Subsidiaries or records acquisition of 10% or officers more of the Acquired Companies toassets 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 Third Party, in each case, Person (other than Buyers) with respect toto 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 could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release if the Board of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, Directors of the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined determines in good faith, after consultation with its outside financial and independent outside legal advisorscounsel (who may be the Company's regularly engaged independent legal counsel), that failure prior to obtaining the Requisite Company Vote, it is necessary to do so in order to act in a manner consistent with its fiduciary duties to the Company's stockholders under applicable law, the Company may, prior to obtaining the Requisite Company Vote, in response to a Takeover Proposal, which proposal 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 discussions or negotiations regarding such Takeover Proposal.
(b) Except in connection with 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 modify, or propose publicly to withdraw or modify, in a manner adverse to Buyers, the approval or recommendation by the Board of Directors of the Company or such committee of this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any Acquisition Agreement.
(c) The Company shall promptly advise Buyers orally and in writing of any request for information of the type referred to in Section 5.8(a) or of any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal and the identity of the Person making such request or Takeover Proposal. The Company will keep Buyers informed of the status and details (including amendments or proposed amendments) of any such request or Takeover Proposal.
(d) 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 from making any disclosure to the Company's stockholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with independent outside legal counsel and based as to legal matters on the written advice of the Company's independent outside legal consent, failure so to disclose would be inconsistent with its fiduciary duties obligations under Applicable Lawapplicable law; provided, (D) approvehowever, endorsethat, recommend except as contemplated by Section 5.8(b), neither the Company nor the Board of Directors of the Company nor any committee thereof shall withdraw or enter intomodify, or propose publicly propose to approvewithdraw or modify, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract its position with respect to any Acquisition Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 6.02(c) (an “Alternative Acquisition this Agreement”); (E) take any action , the Offer or Merger, or approve or recommend, or propose publicly to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL approve or any other applicable recommend, a Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoingProposal.
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02Allegiance agrees that, during the period from term of this Agreement, it shall not, and shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to solicit, initiate, encourage or knowingly facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving Allegiance, or acquisition of any capital stock (other than upon exercise of Allegiance Options that are outstanding as of the date hereof) or 15% or more of the assets of Allegiance and its subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or any combination of the foregoing (a "Competing Transaction"), or negotiate, explore or otherwise engage in discussions with any person (other than Cardinal, Subcorp or their respective directors, officers, employees, agents and representatives) with respect to any Competing Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that, at any time prior to the approval of the Merger by the Allegiance Stockholders, Allegiance may furnish information to, and negotiate or otherwise engage in discussions with, any party who delivers a written proposal for a Competing Transaction which was not solicited or encouraged after the date of this Agreement until if and so long as the earlier Board of the Effective Time or the termination Directors of this Agreement in accordance with Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: (A) solicit, initiate, seek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined Allegiance determines in good faith, faith by resolution duly adopted after consultation with its outside financial and counsel (who may be its regularly engaged outside legal advisors, counsel) that the failure to take such action would reasonably be inconsistent expected to constitute a breach of its fiduciary duties under Applicable Law and determines that such a proposal is, after consulting with CSFB (or any other nationally recognized investment banking firm), more favorable to Allegiance Stockholders from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions proposed by Cardinal in response to such Competing Transaction) (a "Superior Proposal"). Allegiance will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any proposal for a Competing Transaction and request the return of all confidential information regarding Allegiance provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. In the event that prior to the approval of the Merger by the Allegiance Stockholders the Board of Directors of Allegiance receives a Superior Proposal that was not solicited or encouraged after the date of this Agreement, and the Board of Directors of Allegiance determines in good faith by resolution duly adopted after consultation with its outside counsel (who may be its regularly engaged outside counsel) that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law, the Board of Directors of Allegiance may (Dsubject to this and the following sentences) approvewithdraw, endorsemodify or change, recommend or enter intoin a manner adverse to Cardinal, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract the Allegiance Board Recommendation and/or comply with Rule 14e-2 promulgated under the Exchange Act with respect to any Acquisition Proposal other than an Acceptable Confidentiality a Competing Transaction, provided that it gives Cardinal three business days' prior written notice of its intention to do so (provided that the foregoing shall in no way limit or otherwise affect Cardinal's right to terminate this Agreement in accordance with pursuant to Section 6.02(c7.1(d) (an “Alternative Acquisition Agreement”at such time as the requirements of such subsection have been met); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 . Any such withdrawal, modification or change of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions Allegiance Board Recommendation shall not to apply or (F) resolve, agree, authorize or commit to do any change the approval of the foregoingBoard of Directors of Allegiance for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby, including the Merger, the Allegiance Stock Option Agreement or the Support Agreements or change the obligation of Allegiance to present the Merger for approval at a duly called Allegiance Stockholders Meeting on the earliest practicable date determined in consultation with Cardinal. From and after the execution of this Agreement, Allegiance shall promptly (but in any event within one calendar day) advise Cardinal in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to a Competing Transaction (including the specific terms thereof and the identity of the other party or parties involved) and promptly furnish to Cardinal a copy of any such written proposal in addition to any information provided to or by any third party relating thereto. In addition, Allegiance shall promptly (but in any event within one calendar day) advise Cardinal, in writing, if the Board of Directors of Allegiance shall make any determination as to any Competing Transaction as contemplated by the proviso to the first sentence of this Section 5.3(d).
Appears in 1 contract
No Solicitation. Except as permitted by this Section 6.02(a) The Company agrees that, during the period from the date of this Agreement hereof until the earlier of the Effective Time or the date of termination of this Agreement in accordance with Section 8.01Agreement, the Company it shall not, and shall (i) cause its Subsidiaries and the respective directors its and officers of each Acquired Company its Subsidiaries’ Affiliates and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, directly or indirectly: , (Ai) solicit, initiate, seek knowingly encourage or knowingly encourage (including by way of furnishing facilitate, or furnish or disclose non-public information relating to in furtherance of, any Acquired Company) inquiries or the making of any inquiry, discussion, proposal or offer or request that which constitutes, or could may reasonably be expected to lead to, an Acquisition Proposalany proposal or offer with respect to any Alternative Transaction (other than with respect to Parent, Purchaser or their respective Representatives) or agree to or endorse any Alternative Transaction, (Bii) enter into, continue or otherwise negotiate, participate in or engage in discussions with any discussions Person (other than Parent, Purchaser or negotiations with, or furnish any non-public information relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party, in each case, their respective Representatives) with respect to, to any Alternative Transaction or that could reasonably be expected to lead to, an Acquisition Proposalany inquiry with respect thereto, (Ciii) enter into any agreement to (x) consummate any Alternative Transaction, (y) approve or endorse any Alternative Transaction or (z) in connection with any Alternative Transaction, require it to abandon, terminate or fail to consummate the Merger, (iv) grant any waiver, amendment or release under the Rights Agreement, or (v) agree to resolve to take, or take any of any Third Party under any standstill the actions prohibited by clause (i), (ii), (iii) or confidentiality agreement(iv) of this sentence; provided that notwithstanding the foregoingCompany and its Representatives may contact any Person making such proposal and its Representatives to ascertain facts or clarify terms and conditions for the sole purpose of the Company Board informing itself about such proposal and the Person that made it, and the Company may furnish information to, and negotiate or engage in discussions with, any party who delivers a bona fide written proposal for an Alternative Transaction which was made and not solicited, initiated, knowingly encouraged or knowingly facilitated by the Company or its Representatives after the date hereof, if and so long as, in each case, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined reasonably determines in good faith, faith after consultation with its outside financial and outside legal advisors, counsel that the failure to take provide such action would information or engage in such negotiations or discussions is reasonably likely to be inconsistent with its fiduciary duties to the stockholders of the Company under Applicable Law, (D) approve, endorse, recommend or enter intoapplicable Law and reasonably determines in good faith that such proposal is, or publicly propose is reasonably likely to approvelead to a Superior Proposal. The Company shall notify Parent promptly (but in any event within 24 hours after receipt thereof) of any such inquiries, endorseproposals or offers received by, recommend or enter intoany such discussions or negotiations sought to be initiated or continued with, the Company or any of its Representatives, indicating the name of such Person, the material terms and conditions of any such inquiry, proposal or offer and providing to Parent a copy of any written documentation material to understanding such proposal or offer that is received by the Company from such Person (or from any Representative of such Person). Prior to providing any information or data to, or entering into any negotiations or discussions with, any letter of intentPerson, memorandum of understandingor making any such recommendation, in connection with a proposal or offer for an Alternative Transaction, the Company shall receive from such Person an executed confidentiality agreement containing terms and provisions at least as restrictive to such Person as those contained in principle, acquisition agreement, merger agreement or other Contract with respect to any Acquisition Proposal other than an Acceptable the Confidentiality Agreement in accordance (it being understood, however, that such confidentiality agreement need not contain any obligation precluding discussions or negotiations relating to the proposal or offer from such Person and shall not contain any provision that requires exclusive negotiations with Section 6.02(c) (an “Alternative Acquisition Agreement”); (E) take any action to exempt any Third Party from the restrictions on “business combinations” contained in Section 203 of the DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (F) resolve, agree, authorize or commit to do any of the foregoing.such
Appears in 1 contract