No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representatives.
Appears in 2 contracts
Sources: Voting and Support Agreement (GB Aero Engine Merger Sub Inc.), Voting and Support Agreement (Edac Technologies Corp)
No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall notshall, and shall cause its Subsidiaries and its and their respective representatives Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Third Person and its Representatives concerning any Acquisition Proposal or discussion that could lead to an Acquisition Proposal, cease providing any further information with respect to the Company, its Subsidiaries or any Acquisition Proposal to any such Third Person or its Representatives, terminate access for any such Third Persons and their Representatives to any physical or electronic data room, and request that any such Third Person and its Representatives in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company to such Persons in connection with such activities, discussions or negotiations return or destroy all such information in accordance with any confidentiality agreement or similar agreement between the Company and such Third Person. From and after the date of this Agreement, except as expressly permitted by this Section 6.5, the Company and its Subsidiaries shall not (and the Company shall direct its and their respective Representatives not to), directly or indirectly, (i) solicit, initiaterequest, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public or disclosing information) the submission of any Takeover Proposal proposal, offer or inquiry that constitutes, or is reasonably likely to lead to, an Acquisition Proposal, or take any other action to facilitate or initiate the making of any proposal that constitutesAcquisition Proposal, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conductenter into, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations with, disclose furnish or make available any non-public information relating to the Company information, or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, any Third Person in connection with any Acquisition Proposal or participate inany proposal, facilitate, encourage, offer or knowingly assist any effort by, any third party inquiry that could reasonably be expected to makelead to, or has madean Acquisition Proposal, any Takeover Proposal or (iii) amend or grant any waiver or release under or fail to enforce any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, unless the Company Board after considering advice from outside legal counsel to the Company that the failure to waive or release or fail to enforce such provision would reasonably be expected to be inconsistent with its fiduciary duties under applicable Laws of the State of Delaware, (iv) approve any Third Person becoming an “interested stockholder” under Section 203 of the DGCL, (v) enter into, approve or recommend into any understanding, agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar Contract relating to any Takeover Proposalan Acquisition Proposal (other than the confidentiality agreements permitted under Section 6.5(b)(iii)) (each, an “Acquisition Agreement”) or agree or commit (vi) propose publicly to or agree to facilitate do any of the foregoing. Each Nothing in this Section 6.5 shall prohibit the Company, its Subsidiaries and its and their respective Representatives from informing any Person of the existence of the provisions contained in this Section 6.5 or clarifying the terms and conditions thereof. It is understood that any violation of the restrictions on the Company set forth in this Section 6.5 by any Subsidiary of the Company or any of their respective Representatives shall be deemed a breach of this Section 6.5 by the Company.
(b) Notwithstanding Section 6.5(a), at any time prior to obtaining the Company Stockholder shallApproval, the Company, its Subsidiaries and its and their respective Representatives may participate in discussions or negotiations regarding, and furnish or disclose information (including non-public information) in response to, an unsolicited, bona fide written Acquisition Proposal which was made after the date of this Agreement and did not result from any breach of this Section 6.5 that is submitted to the Company, any of its Subsidiaries or its or their respective Representatives; provided that (i) the Company Board determines in good faith, based on the information then available and after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, (ii) the Company Board determines in good faith, based on the information then available and after consultation with its outside legal counsel, that failing to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, (iii) prior to participating in discussions or negotiations with, or furnishing or disclosing any non-public information to, a Third Person with respect to such Acquisition Proposal, the Company receives from such Third Person an executed confidentiality agreement containing terms not less favorable to the Company than the terms then applicable under the Confidentiality Agreement and (iv) promptly (and in any event within 48 hours) after furnishing or making available any non-public information concerning the Company and its Subsidiaries to any such Third Person, the Company furnishes or makes available such information to Parent or its Representatives (to the extent such information has not been previously furnished or made available by the Company to Parent or its Representatives).
(c) The Company shall notify Parent in writing promptly (but in no event later than 24 hours) after receipt by the Company, its Subsidiaries or any of their respective Representatives of any Acquisition Proposal, any bona fide written indication that a Third Person intends to make an Acquisition Proposal or any written request for information relating to the Company and its Subsidiaries or for access to the business, books or records of the Company or any of its Subsidiaries, in each case by any Third Person that intends to make an Acquisition Proposal in connection therewith. The Company shall identify the Third Person making, and the material terms and conditions of, any such Acquisition Proposal, indication or request (including any material changes thereto). The Company shall keep Parent reasonably informed on a current basis of any material developments, discussions or negotiations regarding any such Acquisition Proposal, indication or request (including any changes thereto), and shall cause promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all correspondence and written materials sent or provided to the Company or any of its respective representatives toSubsidiaries that describes any terms or conditions of any Acquisition Proposal (as well as written summaries of any material oral communications addressing such matters).
(d) Except as expressly permitted by this Section 6.5, immediately cease the Company Board shall not (i) withhold, withdraw, modify, amend or qualify, or propose publicly or resolve to withhold, withdraw, modify, amend or qualify, in any manner adverse to Parent or Merger Sub, the Company Recommendation (a “Change in Company Recommendation”) (it being understood that the Company Board may refrain from taking a position with respect to an Acquisition Proposal until the close of business of the tenth Business Day following a written request by Parent to the Company Board to affirm the Company Recommendation after the commencement of a tender or exchange offer in connection with such Acquisition Proposal without such action being considered an adverse modification), (ii) adopt, approve, authorize or recommend or otherwise declare advisable, or propose publicly to adopt, approve, authorize or recommend or otherwise declare advisable, any Acquisition Proposal, (iii) take or fail to take any formal action or make or fail to make any recommendation or public statement in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and be terminated listen” communication by the Company Board (or a committee thereof) to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) or (iv) enter into any Acquisition Agreement.
(e) If, prior to obtaining the Company Stockholder Approval, the Company receives an Acquisition Proposal that the Company Board concludes in good faith, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, constitutes a Superior Proposal, the Company Board may effect a Change in Company Recommendation or terminate this Agreement pursuant to Section 8.1(c)(ii) to enter into a definitive, written agreement concerning such Superior Proposal, if, and only if:
(i) the Company shall have provided prior written notice to Parent, at least four Business Days in advance (the “Notice Period”), of its intention to effect a Change in Company Recommendation pursuant to this Section 6.5(e) or to terminate this Agreement to enter into a definitive, written agreement concerning a Superior Proposal pursuant to Section 8.1(c)(ii), which notice shall specify the basis for such Change in Company Recommendation or termination and the identity of the party making such Superior Proposal, the material terms and conditions thereof and all existing discussions material documents relating to such Acquisition Proposal; provided that in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.5(e) with respect to such new written notice (it being understood that the “Notice Period” in respect of such new written notice shall be two Business Days);
(ii) the Company Board shall have determined in good faith, after consultation with outside legal counsel, that failure to effect a Change in Company Recommendation or negotiations terminate this Agreement to enter into a Superior Proposal, as applicable, would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law and the Company shall have complied in all material respects with all of its obligations under this Section 6.5;
(iii) after providing the notice contemplated by Section 6.5(e)(i), the Company shall have discussed and negotiated, and shall have caused its Representatives to discuss and negotiate, with Parent and its Representatives in good faith (to the extent Parent has requested that the Company discuss and negotiate with Parent and its Representatives) during the Notice Period such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to effect a Change in Company Recommendation or terminate this Agreement to enter into a Superior Proposal, as applicable; and
(iv) (A) the Company Board shall have considered in good faith any Person proposed changes to this Agreement offered in writing by Parent no later than 5:00 p.m. (other than ParentEastern Time) conducted theretofore on the last day of the Notice Period, and, taking into account any such proposed changes, shall have determined in good faith, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and the failure to take such action would continue to be inconsistent with the Company Board’s fiduciary duties to the stockholders of the Company under applicable Law and (B) in the case of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Acquisition Agreement concerning a Superior Proposal, the Company shall have validly terminated this Agreement in accordance with Section 8.1(c), including paying the Company Termination Fee in accordance with Section 8.2(h).
(f) Nothing contained in this Section 6.5 shall prohibit the Company Board, directly or indirectly through its Representatives, from (i) complying with Rule 14e-2(a) under the Exchange Act with respect to any Takeover Acquisition Proposal; provided that any such position taken or disclosed that relates to an Acquisition Proposal and request from each Person that has executed shall be deemed to be a confidentiality agreement Change in Company Recommendation unless the Company Board reaffirms the Company Recommendation in such statement or in connection with such Stockholder Acquisition Proposal requiring compliance with Rule 14e-2(a) no later than the prompt return ten business day deadline set forth in Rule 14e-2(a) or destruction (ii) making a “stop, look and listen” disclosure or similar communication of all confidential information previously furnished the type contemplated by Rule 14d-9(f) under the Exchange Act, an express rejection of any Acquisition Proposal or an express reaffirmation of the Company Recommendation.
(g) Notwithstanding anything to the contrary set forth in this Agreement, other than in connection with an Acquisition Proposal received by the Company or its Subsidiaries, the Company Board may effect a Change in Company Recommendation (and the Company shall not be required to include the Company Recommendation in the Proxy Statement/Prospectus) in response to an Intervening Event if the Company Board shall have determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law; provided, that, (i) the Company promptly notified Parent in writing at least four Business Days before taking such action, of its intention to do so, attaching a reasonably detailed description of the facts relating to such Person or Change in Company Recommendation, (ii) during such four Business Day period, if requested by Parent, the Company and its representativesRepresentatives shall have discussed and negotiated in good faith (to the extent that Parent has requested that the Company discuss and negotiate) with Parent and its Representatives regarding any proposal by Parent to amend the terms of this Agreement in response to such potential Change in Company Recommendation; and (iii) after such four Business Day period, the Company Board shall have determined in good faith, after considering advice from its outside legal counsel, and taking into account any proposal by Parent to amend the terms of this Agreement made during such period, that the failure to take such action would still be inconsistent with its fiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Forestar Group Inc.), Merger Agreement (Horton D R Inc /De/)
No Solicitation. Except Subject to the extent the Company would be permitted under Section 6.04 9, each of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder TK Parties shall not, not and shall use its reasonable best efforts to cause its respective representatives Affiliates and Representatives not to, directly or indirectly, : (ia) solicit, initiate, propose or knowingly take facilitate any action to facilitate inquiries, proposal or encourage (including by way of furnishing non-public information) offer or the submission making, submission, modification or amendment or announcement of any Takeover Proposal inquiry, proposal or the making of any proposal that constitutes, offer which constitutes or could would be reasonably be expected to lead to, any Takeover to a Partnership Competing Proposal; (iib) conduct, continue, participate in or engage in, solicitin any negotiations or discussions (other than to state that it is not permitted to have discussions) regarding, or otherwise participate in furnish to any discussions or negotiations with, disclose Person any non-public nonpublic information relating to the Company Partnership in connection with, any inquiry, proposal or offer which constitutes or would be reasonably expected to lead to a Partnership Competing Proposal; (c) publicly support or recommend any Partnership Competing Proposal, (d) except with respect to any Partnership Competing Proposal that is the subject of its Subsidiaries a Partnership Change of Recommendation made in accordance with Section 5.2(d) of the Merger Agreement, fail to, afford access following the request of Parent to the businessdo so, propertiespromptly publicly and without qualification recommend against any Partnership Competing Proposal, assets, personnel, books or records (e) enter into any letter of the Company intent or any of its Subsidiaries other document or agreement relating to, or participate in, facilitate, encourage, any agreement or knowingly assist any effort bycommitment providing for, any third party that could reasonably be expected Partnership Competing Proposal. Notwithstanding the foregoing, the TK Parties may (and may permit their Affiliates and their and their Affiliates’ Representatives to) participate in discussions and negotiations with any Person making a Partnership Competing Proposal (or its Representatives) with respect to make, such Partnership Competing Proposal if: (i) the Partnership or has made, any Takeover Proposal General Partner is engaging in discussions or (iiinegotiations with such Person pursuant to Section 5.2(b) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoingMerger Agreement and has not breached Section 5.2 of the Merger Agreement; and (ii) the TK Parties’ negotiations and discussions are in conjunction with and ancillary to the Partnership’s or the General Partner’s discussions and negotiations. Each Stockholder shallof TKC and TFL shall immediately cease, and cause its directors, officers and employees to cease, and shall use its reasonable best efforts to cause its respective representatives toRepresentatives to immediately cease, immediately cease and be terminated any and all existing discussions or negotiations with any Person parties (other than Parentor provision of any nonpublic information to any parties) conducted theretofore heretofore with respect to any Takeover Partnership Competing Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder or Partnership Inquiry existing on the prompt return or destruction of all confidential information previously furnished to such Person or its representativesdate hereof.
Appears in 2 contracts
Sources: Voting and Support Agreement (Teekay LNG Partners L.P.), Voting and Support Agreement (Teekay Corp)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (a) From and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from after the date of this Agreement until the earlier to occur of the Effective Time or, if earlier, the or termination of this Agreement pursuant to Article 7, and except as otherwise provided for in accordance with this Agreement, the Company and its terms, each Stockholder shall Subsidiaries will not, and shall cause its nor will they authorize or knowingly permit any of their respective officers, directors, controlled Affiliates or employees or any of their respective investment bankers, attorneys or other advisors or representatives not to, directly or indirectly, : (i) solicit, initiate, propose or knowingly take any action intended to facilitate encourage or encourage (including by way of furnishing non-public information) induce the making, submission or announcement of any Takeover Proposal Acquisition Proposal; (ii) engage or participate in any discussions or negotiations with any Person (other than any officer, director, controlled Affiliate or employee of the Parent or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Parent or any of its Subsidiaries) regarding, or furnish to any Person any information with respect to, or take any other action intended to facilitate, any inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Acquisition Proposal; (iiiii) conductapprove, continueendorse or recommend any Acquisition Proposal; or (iv) enter into any letter of intent or similar document or any contract, engage agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. Notwithstanding the above, prior to the approval of the Merger Proposal at the Company Meetings, nothing contained in this Agreement (including this Section 5.7) shall prohibit the board of directors of the Company, in response to an unsolicited written Acquisition Proposal that is not withdrawn, from engaging or participating in discussions or negotiations with and furnishing information to the party making such Acquisition Proposal, provided that the board of directors of the Company: (A) in good faith and after consultation with the Company’s financial advisors and outside legal counsel, concludes that the offer is, or would reasonably be likely to result within 20 (twenty) Business Days of the receipt of such Acquisition Proposal in, solicita Superior Proposal, and (B) determines in good faith after consultation with its outside legal counsel that such action is required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company’s shareholders under applicable Legal Requirements (which, for purposes of this clause (B), shall be deemed to consist of Israeli Legal Requirements and in addition, in order to determine the appropriate standards that would apply to such fiduciary obligations, the board of directors of the Company may also consider Delaware Legal Requirements); and provided further that (x) prior to, or otherwise participate in concurrently with, furnishing any such information to, or entering into discussions or negotiations with, disclose any non-public information relating to such party, the Company or any of its Subsidiaries to, afford access to gives the business, properties, assets, personnel, books or records Parent written notice of the Company identity of such Person or any group and of its Subsidiaries the Company’s intention to furnish information to, or participate inenter into discussions or negotiations with, facilitate, encourage, or knowingly assist any effort by, any third such party that could reasonably be expected and (y) the Company receives from such party an executed confidentiality agreement at least as restrictive as the Confidentiality Agreement (but permitting disclosure to make, or has made, any Takeover Proposal or the Parent required under this Agreement); and (iiiz) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit prior to or agree contemporaneously with furnishing any such information to facilitate any of such party, the foregoingCompany furnishes such information to the Parent (to the extent such information has not been previously furnished by the Company to the Parent). Each Stockholder shall, The Company and shall cause its respective representatives to, Subsidiaries will immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) parties conducted theretofore heretofore with respect to any Takeover Proposal and request from each Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions in this Section 5.7 by any officer, director, controlled Affiliate or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other representative retained by the Company or any of its Subsidiaries or any other Person that has executed who shall have entered into a confidentiality agreement with such Stockholder Voting Undertaking shall be deemed to be a breach of this Section 5.7 by the prompt return or destruction Company. For purposes of all confidential information previously furnished to such Person or its representatives.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Saifun Semiconductors Ltd.), Merger Agreement (Saifun Semiconductors Ltd.)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from a) From the date of this Agreement until the Effective Time orTime, if earlierexcept as specifically permitted in Section 5.4(d), the termination Company agrees that neither it nor any of this Agreement in accordance with its terms, each Stockholder shall notSubsidiaries nor any of the officers or directors of it or its Subsidiaries shall, and that it shall cause its respective representatives and its Subsidiaries’ Representatives not to, directly or indirectly, :
(i) solicit, initiate, propose solicit or knowingly take any action to facilitate or encourage (including by way of furnishing non-public providing information) the submission of or knowingly facilitate any Takeover Proposal inquiries, proposals or offers with respect to, or the making of any proposal that constitutesmaking, or could reasonably be expected to lead tothe completion of, any a Takeover Proposal; ;
(ii) conduct, continue, participate or engage in, solicit, or otherwise participate in any discussions or negotiations with, or furnish or disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access or otherwise knowingly cooperate with or knowingly assist any Person in connection with a Takeover Proposal;
(iii) withdraw, modify or amend the Company Board Recommendation in any manner adverse to MergerCo;
(iv) approve, endorse or recommend any Takeover Proposal;
(v) enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to a Takeover Proposal; or
(vi) resolve, propose or agree to do any of the businessforegoing.
(b) The Company shall, propertiesand shall cause each of its Subsidiaries and Representatives to, assetsimmediately cease any solicitations, personneldiscussions or negotiations existing on the date of this Agreement with any Person (other than the parties hereto) that has made or indicated an intention to make a Takeover Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.4.
(c) The Company shall notify MergerCo promptly (and in any event within 24 hours) upon receipt by it or its Subsidiaries or Representatives of (i) any Takeover Proposal, books or records of (ii) any request for non-public information relating to the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected other than requests for information in the ordinary course of business and unrelated to make, or has made, any a Takeover Proposal or (iii) enter into, approve any inquiry or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement request for discussions or other Contract relating to negotiations regarding any Takeover Proposal. The Company shall notify MergerCo promptly (and in any event within 24 hours) with the identity of such Person and a copy of such Takeover Proposal, indication, inquiry or agree or commit to or agree to facilitate any request (or, where no such copy is available, a description of the material terms and conditions of such Takeover Proposal, indication, inquiry or request), including any material modifications thereto. The Company shall keep MergerCo reasonably informed on a current basis (and in any event within 24 hours of the occurrence of any changes, developments, discussions or negotiations) of the status of any such Takeover Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), including furnishing copies of any written revised proposals. Without limiting the foregoing, the Company shall promptly (and in any event within 24 hours) notify MergerCo orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Takeover Proposal pursuant to Section 5.4(d). Each Stockholder shallThe Company shall not, and shall cause its respective representatives Subsidiaries not to, immediately cease enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is party to any agreement, which prohibits the Company from providing such information to MergerCo.
(d) Notwithstanding the foregoing, the Company shall be terminated any and all existing permitted, if it has otherwise complied with its obligations under this Section 5.4, but only prior to the satisfaction of the condition set forth in Section 6.1(a), to:
(i) engage in discussions or negotiations with a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to taking such action, (A) the Company enters into an Acceptable Confidentiality Agreement with such Person and (B) the Company Board (acting through the Special Committee, if then in existence) determines in good faith (1) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal and (2) after consultation with its outside legal counsel, that the failure to take such action could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws;
(ii) furnish or disclose any non-public information relating to the Company or any of its Subsidiaries to a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to taking such action, the Company Board (acting through the Special Committee, if then in existence) determines in good faith (A) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal and (B) after consultation with its outside legal counsel, that the failure to take such action could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, but only so long as the Company (x) has caused such Person to enter into an Acceptable Confidentiality Agreement and (y) concurrently discloses the same such non-public information to MergerCo if such non-public information has not previously been disclosed to MergerCo;
(iii) withdraw, modify or amend the Company Board Recommendation in a manner adverse to MergerCo or SibCo (a “Recommendation Change”), if the Company Board (acting through the Special Committee, if then in existence) has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws; provided that, if such action is in response to or relates to a Takeover Proposal, then the Recommendation Change shall be taken only in compliance with Section 5.4(d)(iv);
(iv) in response to a Takeover Proposal not solicited in violation of this Section 5.4 which the Company Board (acting through the Special Committee, if then in existence) has determined in good faith, after consultation with its outside financial advisor, constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by MergerCo pursuant to the provisos to this paragraph, (x) effect a Recommendation Change or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, such termination to be effective only if in advance of or concurrently with such termination the Company pays the Termination Fee in the manner provided for in Section 7.6(a); provided that neither the Company nor the Special Committee shall make a Recommendation Change or terminate this Agreement unless: (1) the Company Board (acting through the Special Committee, if then in existence) has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, (2) the Company shall have given MergerCo prompt written notice advising MergerCo of (A) the decision of the Company Board (acting through the Special Committee, if then in existence) to take such action and (B) the material terms and conditions of the Takeover Proposal, including the identity of the party making such Takeover Proposal and, if available, a copy of the relevant proposed transaction agreements with such party and other material documents, (3) the Company shall have given MergerCo five Business Days (or three Business Days in the event of each subsequent material revision to such Takeover Proposal) after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal) and shall have negotiated in good faith with MergerCo with respect to such proposed revisions or other proposal, if any, and (4) at the end of such period, the Company Board (acting through the Special Committee, if then in existence) shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by MergerCo, if any, after consultation with outside legal counsel, that (A) in the case of a Recommendation Change, failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws and (B) in the case of a termination of this Agreement, that such Takeover Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by MergerCo; provided that, in the event the Company Board (acting through the Special Committee, if then in existence) does not make the determination referred to in clause (4) of this paragraph but thereafter determines to effect a Recommendation Change or to terminate this Agreement pursuant to this Section 5.4(d)(iv), the procedures referred to in clauses (1) – (4) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification.
(e) Section 5.4(d) shall not prohibit the Company Board from disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (other than Parentany disclosure prohibited by Section 5.4(d)); provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) conducted theretofore under the Exchange Act shall be deemed to be a withdrawal, modification or amendment of the Company Board Recommendation in a manner adverse to MergerCo unless the Company Board (x) expressly reaffirms its recommendation to its stockholders in favor of adoption of this Agreement or (y) rejects such other Takeover Proposal.
(f) The Company shall not take any action to (i) amend the Company Rights Agreement or redeem the Rights (as defined in the Company Rights Agreement), or (ii) exempt any Person from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions) or otherwise cause such restrictions not to apply; in each case, unless such actions are taken simultaneously with a termination of this Agreement in accordance with its terms.
(g) Any withdrawal, modification or amendment by the Special Committee of its recommendation that forms a part of the Company Board Recommendation in any manner adverse to MergerCo or SibCo or that is inconsistent with the Company Board Recommendation, and any approval, endorsement or recommendation by the Special Committee of any Takeover Proposal, and any resolution or announcement of an intention of the Special Committee with respect to any of the foregoing, shall be deemed and treated for all purposes of this Agreement as if such action were taken by the Company Board with respect to the Company Board Recommendation or any such Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesProposal, as applicable.
Appears in 2 contracts
Sources: Merger Agreement (Neubauer Joseph), Merger Agreement (Aramark Corp/De)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 (a) Each of the Merger Agreement to take such actions at the applicable time (IUB and subject to compliance with the notice, disclosure and other obligations PTC respectively agree that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder it shall not, and nor shall cause its respective representatives not it permit any of it Subsidiaries to, directly nor shall it authorize or indirectlypermit any officer, director or employee of or any investment banker, attorney or other advisor or representative of, it or any Subsidiary to, (i) solicit, initiate, propose or knowingly take any action to facilitate initiate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal takeover proposal (as defined below), (ii) enter into any agreement with respect to any takeover proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Takeover Proposaltakeover proposal; PROVIDED, HOWEVER, that nothing contained in this Agreement shall prevent either IUB or PTC or the Board of Directors of either from (iiA) conduct, continue, engage in, solicitfurnishing nonpublic information to, or otherwise participate in any entering into discussions or negotiations with, disclose any non-public information relating person in connection with an unsolicited bona fide written takeover proposal to IUB or PTC or their respective shareholders, if and only to the Company extent that the Board of Directors of IUB or PTC, as applicable, determines in good faith based on written advice of its outside legal counsel that such action is necessary for such Board of Directors to comply with its fiduciary duties to shareholders under applicable law, or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a takeover proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any executive officer of IUB or PTC or any of its respective Subsidiaries toor any investment banker, afford access attorney or other advisor or representative of IUB or PTC or any of their respective Subsidiaries, whether or not such person is purporting to act on behalf of IUB or any Subsidiary or PTC or any Subsidiary, as applicable, or otherwise, shall be deemed to be a breach of this Section 4.2(a) by the businessparty for whom such person is an executive officer of, propertiesor an investment banker, assetsattorney or other advisor or representative for, personnelsuch party or any Subsidiary. For purposes of this Agreement, books "takeover proposal" means any proposal for a merger, consolidation or records other business combination involving IUB or PTC or any Subsidiary of either or any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of any class of voting securities of IUB or PTC or any Subsidiary of either, or assets representing a substantial portion of the Company assets of IUB and its Subsidiaries, taken as a whole, or PTC and its Subsidiaries, taken as a whole, other than the Merger contemplated by this Agreement. Each of IUB and PTC shall immediately cease and cause to be terminated any existing activities, discussions or negotiations by it or any of its Subsidiaries toofficers, or participate ininvestment bankers, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement attorneys or other Contract relating advisors or representatives with any parties conducted heretofore with respect to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representatives.20
Appears in 2 contracts
Sources: Merger Agreement (Indiana United Bancorp), Merger Agreement (PTC Bancorp)
No Solicitation. Except to the extent the The Company would be permitted under Section 6.04 agrees that neither it nor any of its Subsidiaries nor any of the Merger Agreement officers and directors of it or its Subsidiaries shall, and that it shall not authorize or permit any of its and its Subsidiaries’ Employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date shall not authorize any of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not them to, ) directly or indirectly, : (i) solicit, solicit or initiate, propose or knowingly take facilitate, encourage or induce, any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiry with respect to, or the making of any proposal that constitutesmaking, submission or could reasonably be expected to lead toannouncement of, any Takeover Acquisition Proposal; , (ii) conductsubject to Section 5.3(c), continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose or furnish any non-public nonpublic information with respect to (x) an Acquisition Proposal or (y) any inquiry or proposal that would be reasonably expected to result in an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to Section 5.3(d)), (iv) withdraw or modify the Board Recommendation in a manner adverse to Parent (except to the extent specifically permitted pursuant to Section 5.3(d)) or (v) except for any confidentiality agreement entered into pursuant to Section 5.3(c)(i), enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby (except to the extent specifically permitted pursuant to Section 5.3(d)). The Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it will promptly request each Person that has entered into a confidentiality agreement with the Company in connection with its consideration of an Acquisition Proposal to return or any of its Subsidiaries to, afford access destroy all confidential information heretofore furnished to the business, properties, assets, personnel, books such Person by or records on behalf of the Company or any of its Subsidiaries toSubsidiaries, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of as the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativescase may be.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ligand Pharmaceuticals Inc), Merger Agreement (Pharmacopeia Inc)
No Solicitation. Except to the extent the (i) The Company would be permitted under Section 6.04 agrees that neither it nor any of the Merger Agreement to take such actions at Subsidiaries nor any of the applicable time (officers and subject to compliance with directors of it or any of the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall notSubsidiaries shall, and that it shall cause its respective and the Subsidiaries’ employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of the Subsidiaries) not to (and shall not authorize any of them to), directly or indirectly, indirectly (iA) solicit, initiate, propose encourage, facilitate or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as hereinafter defined), (B) participate in any discussions or negotiations regarding, or furnish to any person or entity any nonpublic information with respect to, or take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Acquisition Proposal (except as permitted pursuant to Section 4.2(c)), (C) engage in discussions with any person or entity with respect to any Acquisition Proposal (except as permitted pursuant to Section 4.2(c)), (D) approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to Section 4.2(d) and Section 7.1(g)), or (E) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby with respect to itself or any of the Subsidiaries (except as permitted pursuant to Section 4.2(d) and Section 7.1(g)). The Company and each of the Subsidiaries shall, and the Company shall cause its and each of the Subsidiaries’ officers, directors, employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of the Subsidiaries) to, cease immediately any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal; . The Company shall ensure that its officers, directors and key employees and its investment bankers, attorneys and other representatives are aware of the provisions of this Section.
(ii) conduct, continue, engage in, solicit, The Company agrees that it will not waive any provision of or otherwise participate amend in any discussions way any confidentiality or negotiations with, disclose standstill agreements with any non-public information relating to Person that has heretofore executed a confidentiality or standstill agreement in connection with its consideration of acquiring the Company or any of the Subsidiaries and the Company shall at all times diligently enforce its Subsidiaries to, afford access rights thereunder. The Company shall advise Parent (promptly after the execution and delivery of this Agreement and to the businessextent permitted by the terms of such confidentiality or standstill agreements) of the identity of each such Person and the material terms of any such proposals or offers.
(i) As promptly as practicable (but in no event later than 48 hours) after receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that it reasonably believes could lead to an Acquisition Proposal, propertiesthe Company shall provide Parent with oral and written notice of the material terms and conditions of such Acquisition Proposal, assetsrequest or inquiry, personneland the identity of the Person or Group (as defined herein) making any such Acquisition Proposal, books request or records inquiry and a copy of all written materials about the Company or any of the Subsidiaries provided in connection with such Acquisition Proposal, request or inquiry not previously provided to Parent. The Company shall provide Parent as promptly as practicable (but in no event later than 48 hours) oral and written notice setting forth all such information as is reasonably necessary to keep Parent informed in all material respects of the status and details (including material amendments or proposed material amendments) of any Acquisition Proposal, request or inquiry and shall promptly provide to Parent a copy of all material written materials about the Company or any of the Subsidiaries subsequently provided to the Person making the Acquisition Proposal in connection with such Acquisition Proposal, request or inquiry to the extent not previously provided to Parent.
(ii) The Company shall provide Parent with 48 hours prior notice (or such lesser prior notice as is provided to the members of its Subsidiaries toboard of directors) of any meeting of its board of directors at which its board of directors is reasonably expected to consider any Acquisition Proposal.
(c) Notwithstanding anything to the contrary contained in Section 4.2(a) and under circumstances in which the Company has complied with all of its obligations under Section 4.2(a) and Section 4.2(b), or participate inin the event that, facilitateprior to the approval of the Merger and this Agreement by the stockholders of the Company as provided herein, encouragethe Company receives an unsolicited, or knowingly assist any effort by, any bona fide written Acquisition Proposal from a third party that could reasonably be expected to makeits board of directors has in good faith concluded (after consulting with its outside legal counsel) is, or is reasonably likely to result in, a Superior Offer, it may then take the following actions: (i) furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) prior to furnishing any such nonpublic information to such party, its gives Parent written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality and standstill agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement (and containing additional provisions that expressly permit the Company to comply with the provisions of this Section 4.2(c)) and (B) contemporaneously with furnishing any material nonpublic information to such third party, it furnishes such material nonpublic information to Parent (to the extent such nonpublic information has madenot been previously so furnished); and (ii) engage in negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with entering into negotiations with such third party, it gives Parent written notice of its intention to enter into negotiations with such third party.
(d) In response to the receipt of a Superior Offer and notwithstanding any Takeover provision hereof to the contrary, the board of directors of the Company may withhold, withdraw, amend or modify, or propose or resolve to withdraw, amend or modify, its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the Company’s stockholders, may recommend that the Company’s stockholders accept the tender or exchange offer (any of the foregoing actions, whether by the board of directors of the Company or a committee thereof, a “Change of Recommendation”). The Company shall promptly provide a written notice to Parent in the event that it intends to effect a Change of Recommendation.
(e) Notwithstanding anything to the contrary contained in this Agreement, the obligation of the Company to call, give notice of, convene and hold its stockholders’ meeting as contemplated in Section 5.3 shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it unless this Agreement is terminated in accordance with the terms hereof. Notwithstanding anything to the contrary contained in this Agreement, prior to the termination of this Agreement, the Company shall not (i) submit to the vote of its stockholders any Acquisition Proposal other than the Merger or (iiiii) enter into, approve or recommend into any understandingagreement, agreement in principle, principle or letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership intent (other than the confidentiality agreement or other Contract relating to any Takeover Proposal, or agree or commit referenced in Section 4.2(c)) with respect to or agree accept any Acquisition Proposal other than the Merger (or resolve to facilitate or publicly propose to do any of the foregoing. Each Stockholder shall, ).
(f) Nothing contained in this Agreement shall prohibit the Company or its board of directors from taking and shall cause disclosing to its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act to the extent required by Applicable Law; provided that the board of directors or the Company shall not recommend that the stockholders of the Company tender their Company Common Stock in connection with any Takeover such tender or exchange offer unless the board of directors of the Company determines in good faith (after consulting with its outside legal counsel and its financial adviser) that such Acquisition Proposal and request from each Person that has executed is a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesSuperior Offer.
Appears in 2 contracts
Sources: Merger Agreement (Occupational Health & Rehabilitation Inc), Merger Agreement (Concentra Operating Corp)
No Solicitation. Except to During the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance Pre-Closing Period, except in connection with the noticeTransactions, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder Seller shall not, and shall cause the other Seller Parties and its and their respective representatives Affiliates and Representatives not to, directly or indirectly, (ia) solicitsolicit or initiate or induce or encourage, initiate, propose or knowingly take any other action to facilitate facilitate, any Alternative Transaction or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiry or the making of any proposal that constitutes, or could would reasonably be expected to lead toto an Alternative Transaction, any Takeover Proposal; (iib) conductenter into, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations withregarding, disclose furnish to any non-public person any information relating to the Company in furtherance of, or otherwise cooperate in any way in furtherance of, any Alternative Transaction or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books inquiry or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party proposal that could would reasonably be expected to makelead to an Alternative Transaction, or has made(c) approve, endorse, recommend, execute or enter into any Takeover Proposal or (iii) enter intoContract, approve or recommend any letter of intent, memorandum of understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract merger, acquisition or similar agreement constituting, contemplating or otherwise relating to any Takeover ProposalAlternative Transaction or any inquiry or proposal that could reasonably be expected to lead to an Alternative Transaction. For the avoidance of doubt, or agree or commit to or agree to facilitate it is understood and agreed that the foregoing shall not prohibit any of the foregoing. Each Stockholder shall, and shall cause its Seller Parties or their respective representatives to, immediately cease and be terminated any and all existing discussions Affiliates or negotiations with Representatives from responding to inquiries by any Person (other than Parent) conducted theretofore with about a possible Alternative Transaction in order to inform such Person of the existence of the obligations contained in this Section 7.15; provided, that Seller shall promptly notify Buyer of the receipt by any of the Seller Parties or, to Seller’s Knowledge, their respective Affiliates or Representatives, of any inquiry or proposal relating to an Alternative Transaction in respect of the Purchased Assets or the Brand, which notice shall identify the Purchased Assets that are the subject of such inquiry or proposal, and, to any Takeover Proposal and request from each Person that has executed the extent not prohibited by a confidentiality agreement in place on or before the date hereof, Seller shall (x) promptly notify Buyer of the material terms thereof and the identity of the person or group involved, (y) promptly furnish Buyer with such Stockholder the prompt return a copy of any written inquiry, proposal or destruction of all confidential other information previously furnished relating to such Person Alternative Transaction, and (z) keep Buyer informed on a current basis of any modifications to such inquiry, proposal or its representativesother information.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Constellation Brands, Inc.), Asset Purchase Agreement (Constellation Brands, Inc.)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Each Stockholder shall notshall, and shall cause its Affiliates (which term, solely for purposes of this Section 4.6, shall be deemed to exclude the Company and its Subsidiaries) and its and their respective representatives directors, officers, managing partners and employees and their respective agents, financial advisors, investment bankers, attorneys and accountants: (i) to immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any persons (other than Parent) that may be ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly, (iA) solicit, initiate, propose knowingly encourage or knowingly take facilitate any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any a Company Takeover Proposal; , (iiB) conduct, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations withregarding, disclose or furnish to any non-public other person any information in connection with or for the purpose of knowingly encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 4.6 and to Section 6.3 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral), (C) encourage or recommend any other holder of Company Common Stock to vote against the Transactions (including the First Merger) or to not tender shares of Company Common Stock into the Offer, or (D) support, recommend, endorse or approve, or propose to support, recommend, endorse or approve, any Company Takeover Proposal or enter into any letter of intent or similar document, agreement, commitment or agreement in principle relating to or facilitating a Company Takeover Proposal. The foregoing notwithstanding, no announcement or disclosure made by, nor any action taken by, the Board of Directors of the Company (including, without limitation, a Company Adverse Recommendation Change) shall be deemed to be a breach of this Section 4.6 by any such Stockholder or Affiliate that serves as a director of the Company so long as such announcement, disclosure or action does not constitute a breach of the Merger Agreement by the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of a breach for which the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativeswas responsible for preventing.
Appears in 2 contracts
Sources: Voting and Support Agreement (Baker Bros. Advisors Lp), Voting and Support Agreement (Alexion Pharmaceuticals Inc)
No Solicitation. Except to (a) During the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from period beginning on the date of this Agreement and continuing until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with Section 9.1, the Company and its termsSubsidiaries and their respective officers and directors shall, and the Company shall instruct and cause its and its Subsidiaries’ other Representatives to, cease and cause to be terminated any discussions or negotiations with any Person that would otherwise be prohibited by this Section 7.7(a). Promptly following the execution of this Agreement, the Company shall deliver a written notice to each Stockholder such Person to the effect that, subject to the provisions of this Section 7.7, the Company is ending all discussions and negotiations with such Person with respect to any Alternative Proposal, effective on and from date of this Agreement, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and/or its Subsidiaries. Subject to the provisions of this Section 7.7, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the Effective Time and the Termination Date, the Company and its Subsidiaries shall not, and shall cause its and their respective representatives Representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage solicit (including by way of furnishing non-public information) the submission of ), initiate or knowingly encourage or facilitate any Takeover Proposal inquiry with respect to, or the making of making, submission or announcement of, any proposal or offer that constitutes, or could is reasonably be expected to lead to, any Takeover an Alternative Proposal; , (ii) conduct, continue, engage in, solicit, furnish to any Person (other than Parent or otherwise participate in any discussions Merger Subs or negotiations with, disclose their respective designees) any non-public information relating to the Company and/or its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiaries (other than Parent or Merger Subs or their respective designees), in any such case relating to an Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations regarding any Alternative Proposal with any Person, except to notify such Person as to the existence and content of the provisions of this Section 7.7, or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement (except for any portion of any such standstill or confidentiality agreement that restricts the ability of a Person to communicate an Alternative Proposal to Company Board), or anti-takeover laws.
(b) Notwithstanding anything to the contrary set forth in this Section 7.7 or elsewhere in this Agreement, until the Agreement of Merger contained in this Agreement shall have been approved by the Company Required Vote, the Company may, directly or indirectly through one or more Affiliates or Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company and/or its Subsidiaries to, and/or afford access to the business, properties, assets, books, records or other non-public information, or to the personnel, books of the Company and/or its Subsidiaries to, a Person or records group of Persons that makes a bona fide Alternative Proposal (under circumstances in which the Company has complied with its non-solicitation obligations under Section 7.7(a)); provided, however, that the Company shall promptly make available to Parent and Merger Subs any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to Parent or Merger Subs or their respective Representatives (which requirement may be satisfied by posting such information in the online data room established by the Company prior to the date hereof); and provided further that, prior to initiating any such action, the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Alternative Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal; and provided further that prior to furnishing such information or access to, or entering into substantive discussions (except as to the existence of this Section 7.7) or negotiations with, such Person(s), (A) the Company receives from such Person(s) an executed Acceptable Confidentiality Agreement and (B) the Company notifies Parent to the effect that it intends to furnish information or access to, or intends to enter into substantive discussions or negotiations with, such Person(s).
(c) Except as provided by Section 7.7(d), at any time after the execution of this Agreement, the Company Board shall not:
(i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to Parent and Merger Subs (a “Company Recommendation Change”); or
(ii) cause or permit the Company or any of its Subsidiaries toto enter into any letter of intent, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any memorandum of understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract similar agreement (an “Alternative Acquisition Agreement”) relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)) or authorize, approve or publicly recommend an Alternative Proposal or any Takeover agreement, understanding or arrangement relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)).
(d) Notwithstanding anything to the contrary set forth in this Agreement, if the Company is then in receipt of a bona fide written Alternative Proposal from any Person that is not withdrawn and that the Company Board concludes in good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal, the Company Board may (1) effect a Company Recommendation Change, and/or (2) adopt, approve, endorse or agree recommend, or commit publicly propose to adopt, approve, endorse or agree recommend, to facilitate the shareholders of the Company any Superior Proposal and authorize the Company to terminate this Agreement in accordance with Section 9.1(c)(ii) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal (provided, however, that in such event under this clause (2), the Company concurrently terminates this Agreement pursuant to Section 9.1(c)(ii) and enters into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal), then the Company Board may effect a Company Recommendation Change, if and only if:
(i) the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that failure to take such action would be inconsistent with the directors’ exercise of their fiduciary obligations to the shareholders of the Company under applicable laws; and
(ii) in the case of clause (x)(2) above, the Company shall have validly terminated this Agreement in accordance with Section 9.1(c)(ii), including the payment of the Termination Fee in accordance with Section 9.2(a).
(e) The Company shall keep Parent reasonably informed regarding the matters contemplated by this Section 7.7 (including any Alternative Proposals). Without limiting the generality of foregoing, (i) the Company shall promptly notify Parent if any proposals or offers with respect to an Alternative Proposal are received by the Company or any of its Representatives indicating, in connection with such notice, the foregoing. Each Stockholder shallmaterial terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such proposals or offers (including any material amendments thereto), including any change in the Company’s intentions as previously notified, and shall cause its respective representatives to(ii) the Company agrees that it will promptly notify Parent if any non-public information is requested from, immediately cease and be terminated or any and all existing discussions or negotiations are sought to be initiated or continued with, the Company or any of its Representatives indicating, in connection with such notice, the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing such information to Parent.
(other than Parentf) conducted theretofore Nothing contained in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from (i) taking and disclosing to its shareholders a position contemplated by Rules 14d-9 or 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to its shareholders if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s shareholders under applicable law or would constitute a violation of applicable law. It is understood and agreed that, for purposes of this Agreement (including Section 9), a factually accurate public statement by the Company that describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto, or any “stop, look and listen” communication by the Company Board, shall not constitute a Company Recommendation Change or an approval or recommendation with respect to any Takeover Alternative Proposal.
(g) Other than with respect to the Debt Commitment, neither Parent nor Merger Subs, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other Person, in any such case with respect to any Alternative Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder involving the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany.
(h) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Communications Holdings, Inc.), Merger Agreement (Surewest Communications)
No Solicitation. Except to the extent the The Company would be permitted under Section 6.04 agrees that neither it nor any of its Subsidiaries nor any of the Merger Agreement officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to take such actions at the applicable time 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 (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date shall not authorize any of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not them to, ) directly or indirectly, : (i) solicit, initiate, propose encourage, facilitate or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action (including granting any Person a waiver or release under any standstill or similar agreement with respect to any class of equity security of the Company or any of its Subsidiaries, other than as contemplated by this Agreement) to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could reasonably be expected to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter intoengage in discussions with any Person with respect to any Acquisition Proposal, approve except to notify such Person as to the existence of these provisions, (iv) approve, endorse or recommend any understandingAcquisition Proposal (except to the extent specifically permitted pursuant to Section 6.3(d)), or (v) enter into any letter of intent or similar document or any contract, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract commitment contemplating or otherwise relating to any Takeover Proposal, Acquisition Proposal or agree or commit to or agree to facilitate any of the foregoingtransaction contemplated thereby. Each Stockholder shall, The Company and shall cause its respective representatives to, Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Acquisition Proposal and request from each shall use commercially reasonable efforts to cause any such Person that has executed a confidentiality agreement (including its employees, agents and representatives) in possession of confidential information about the Company in connection with such Stockholder the prompt an Acquisition Proposal to return or destruction of destroy all confidential such information previously furnished to such Person and all materials, documents, analyses and other work product containing or its representativesderived from that information.
Appears in 2 contracts
Sources: Merger Agreement (Captaris Inc), Merger Agreement (Castelle \Ca\)
No Solicitation. Except to the extent the Company would be as otherwise expressly permitted under Section 6.04 5.09 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith)Agreement, from and after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement pursuant to Section 7, Stockholder, solely in accordance with its termshis or her capacity as a stockholder of Company, each Stockholder shall not, and nor shall cause such Stockholder authorize any partner, officer, director, advisor or representative of such Stockholder or any of his or her affiliates to (and, to the extent applicable to Stockholder, Stockholder shall use commercially reasonable efforts to prohibit any of his, her, or its respective representatives not or affiliates to, directly or indirectly), (ia) solicit, initiate, propose or knowingly take any action to facilitate initiate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiry with respect to, or the making of of, any proposal that constitutes, constitutes or could reasonably be expected to lead to, any Takeover to an Acquisition Proposal; (iib) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal with, disclose or furnish any non-public nonpublic information relating to the Company or any of its Subsidiaries an Acquisition Proposal to, afford access any person that has made or, to the businessknowledge of Stockholder, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or is considering making an Acquisition Proposal; (iiic) enter into, approve or recommend into any understandingagreement, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposalmemorandum of understanding, or agree similar arrangement with respect to an Acquisition Proposal; (d) solicit proxies or commit become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person an Acquisition Proposal (other than Parentthe Merger Agreement) conducted theretofore or otherwise encourage or assist any party in taking or planning any action that would reasonably be expected to compete with, restrain, or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement; (e) initiate a stockholders’ vote or action by consent of Company’s stockholders with respect to an Acquisition Proposal; or (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any Takeover voting securities of Company that takes any action in support of an Acquisition Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder (other than the prompt return or destruction of all confidential information previously furnished to such Person or its representativesMerger Agreement).
Appears in 2 contracts
Sources: Voting Agreement, Voting Agreement (Independent Bank Corp)
No Solicitation. Except to (a) During the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from period beginning on the date of this Agreement until the earlier of the Effective Time or, if earlier, or the termination of this Agreement in accordance with its termsSection 8.1, each Stockholder the Company agrees that (i) the Company and the Company Subsidiaries shall not, and neither the Company nor any of the Company Subsidiaries shall cause its authorize or permit any of their respective representatives not Representatives to, directly or indirectly, (i) solicit, initiate, propose solicit or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal or offer that constitutes, or could is reasonably be expected to lead to, an Alternative Proposal from any Takeover Proposal; (ii) conduct, continue, Person or group of Persons or engage in, solicit, or otherwise participate in any substantive discussions or negotiations withconcerning, disclose or provide any non-public information relating to or knowingly assist, participate in, facilitate or encourage an effort by any third party with respect to, an Alternative Proposal, and (ii) the Company and the Company Subsidiaries shall not enter into any agreement with respect to any Alternative Proposal (other than an Acceptable Confidentiality Agreement) and shall cease, and instruct their respective Representatives to cease, any existing solicitation, substantive discussions or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books negotiations by or records on behalf of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than ParentPerson(s) conducted theretofore with respect to any Takeover Alternative Proposal and shall use its commercially reasonable efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or the Company Subsidiaries that was furnished by or on behalf of the Company and the Company Subsidiaries to return or destroy all such information.
(b) Notwithstanding the restrictions set forth in Section 6.2(a), the Company (directly or through its Representatives) may:
(i) until the earlier to occur of the Acceptance Time and the receipt of the Company Stockholder Approvals, engage in substantive discussions or negotiations with a Person or group of Persons that makes an unsolicited bona fide Alternative Proposal made after the date hereof that did not result from the Company breaching its obligations under this Section 6.2 and may furnish to such Person(s) and its/their Representatives information concerning, 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) the Company Board determines in good faith (after consultation with the Company’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 and (B) the Company notifies Parent to the effect that it intends to furnish information or access to, or intends to enter into substantive discussions or negotiations with, such Person(s);
(ii) comply with Rules 14e-2 and 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to a tender or exchange offer;
(iii) make “stop-look-and-listen” communications with respect to an Alternative Proposal of the nature contemplated by Rule 14d-9 under the Exchange Act; and
(iv) make any other appropriate or required disclosure to the Company’s stockholders and take any other action required in connection with any action permitted by this Section 6.2(b) if the Company Board determines in good faith (after consultation with the Company’s outside counsel) that the failure to make such disclosure or take such other action would be inconsistent with applicable Law; provided, however, that the Company shall promptly notify Parent (within no more than 24 hours) of the communication or receipt of any Alternative Proposal, any request from each that could reasonably be expected to be related to an Alternative Proposal, indicating, in connection with such notice, the identity of the Person making such Alternative Proposal or request and the material terms and conditions thereof. The Company shall keep Parent promptly (within no more than 24 hours) and reasonably informed of any material developments in the status and terms of any such Alternative Proposal or request (including whether such Alternative Proposal or request has been withdrawn or rejected and any material change to the terms thereof and shall provide Parent with copies of any written information or materials that has executed it provides to the Person making the request therefor that have not previously been provided to Parent).
(c) The Company Board may not (i) (A) withdraw or modify, in a confidentiality manner adverse to Parent, the recommendation by the Company Board of the Offer, the Merger or this Agreement (except as set forth in clause (y) of the proviso in Section 2.10(a)(ii) or as set forth below in this Section 6.2(c)) or (B) approve or recommend to the stockholders of the Company an Alternative Proposal (any action in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) 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 the earlier to occur of the Acceptance Time and the receipt of the Company Stockholder Approvals (x) the Company Board may effect an Adverse Recommendation Change other than in connection with an Alternative Proposal if the Company Board (after consultation with the Company’s financial advisor and outside counsel) determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law or (y) in response to an Alternative Proposal, if the Company Board (after consultation with the Company’s financial advisor and outside counsel) determines in good faith that any Alternative Proposal constitutes a Superior Proposal, the Company Board may:
(i) withdraw or modify its approval or recommendation of the Offer, the Merger and this Agreement;
(ii) approve or recommend such Superior Proposal;
(iii) cause the Company or any of the Company Subsidiaries to enter into a binding written agreement with respect to such Stockholder Superior Proposal (a “Superior Proposal Agreement”); or
(iv) terminate this Agreement in accordance with Section 8.1(c); provided, however, that (A) prior to taking any action pursuant to clause (i), (ii), (iii) or (iv) of this Section 6.2(c), the prompt return or destruction Company shall (x) give Parent at least five (5) Business Days prior written notice (the “Notice Period”) thereof, which notice shall state that the Company has received a Superior Proposal, include a copy of all confidential information previously furnished relevant documents relating to such the Superior Proposal and a written summary of the material terms and conditions of the Superior Proposal not made in writing and the identity of the Person or “group” making the Superior Proposal, which notice need only be given once with respect to any Superior Proposal, unless such Superior Proposal is modified in any material respect (which includes any revision in price whatsoever) in which case a new Notice Period will begin (it being understood that there may be multiple extensions) and (y) promptly provide Parent with a list of any nonpublic information concerning the business of the Company and the Company Subsidiaries, and the present or future financial condition or results of operations thereof, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information, (B) during the Notice Period, the Company shall have negotiated with Parent and its representativesRepresentatives in good faith with respect to any adjustments to the terms and conditions of this Agreement as would permit the Company Board not to make an Adverse Recommendation Change and (C) following the Notice Period the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) after taking into account any such modifications, changes or revisions to the terms of this Agreement proposed by Parent (taking into account, among other things, (I) the terms of such offer and (II) such legal, financial, regulatory, timing, financing, conditionality (i.e. closing conditions) and other aspects of such offer which the Company Board deems relevant), that (x) failure to effect the Adverse Recommendation Change action still would be inconsistent with the directors’ fiduciary duties to the Company’s stockholders under applicable Law and (y) if the intended Adverse Recommendation Change is the result of a Superior Proposal, the Superior Proposal would continue to constitute a Superior Proposal even if such changes were to be given effect.
Appears in 2 contracts
Sources: Merger Agreement (EQT Corp), Agreement and Plan of Merger (Trans Energy Inc)
No Solicitation. Except (a) Subject to the extent the Company would be permitted under remainder of this Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith)5.02, from the date of this Agreement until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with pursuant to Article VII, the Company shall not and shall not cause or permit its terms, each Stockholder shall notSubsidiaries to, and shall cause not authorize or permit its respective representatives not to, directly Representatives or indirectly, its Subsidiaries’ Representatives to (i) solicit, initiate, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Acquisition Proposal or the making of any proposal that constitutes(as defined below), or could reasonably be expected to lead to, any Takeover Proposal; (ii) conductenter into any letter of intent, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any memorandum of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheetmerger agreement, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating similar agreement with respect to any Takeover Acquisition Proposal, (iii) solicit, knowingly encourage, participate, engage in or agree assist in any manner any discussions or commit negotiations regarding, or furnish to any person (other than Parent or agree its Representatives) any information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iv) take any action (A) other than as contemplated by this Agreement in connection with the Merger, to render the Company Rights issued pursuant to the terms of the foregoing. Each Company Rights Agreement inapplicable to any Acquisition Proposal or the transactions contemplated thereby, to exempt or exclude any person (other than Parent or Merger Sub) from the definition of an Acquiring Person (as defined in the Company Rights Agreement) under the terms of the Company Rights Agreement or allow the Company Rights to expire prior to their expiration date (all such actions in this subclause (A) are collectively referred to as “Company Rights Agreement Modifications”) or (B) exempt any person (other than Parent or Merger Sub) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provision) or otherwise cause or permit such restrictions not to apply (all such actions in this subclause (B) are collectively referred to as “DGCL 203 Modifications”).
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Stockholder shallApproval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement and not the result of a breach of this Section 5.02, if the Company Board determines in good faith after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal (as defined in subsection (h) below), the Company may (x) enter into a customary confidentiality agreement with the person making such Acquisition Proposal containing terms and provisions (i) substantially similar to the terms and provisions of, (ii) no less restrictive on the person making such Acquisition Proposal and (iii) no less favorable to the Company than, the Confidentiality Agreement (it being understood that such confidentiality agreement will not include any provision calling for an exclusive right to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Section 5.02), (y) furnish, and shall cause authorize and permit its respective representatives toRepresentatives to furnish, immediately cease information with respect to the Company and be terminated any its Subsidiaries to the person making such Acquisition Proposal and all existing its Representatives pursuant to such customary confidentiality agreement and (z) participate in discussions or negotiations with such person and its Representatives regarding any Person such Acquisition Proposal.
(c) The Company shall notify Parent (“Notice of Proposal”) as promptly as practicable (and in any event within 24 hours) after receipt by the Company or any of its Subsidiaries, or any of their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations in connection with any Acquisition Proposal, specifying the material terms and conditions thereof and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of this Agreement, the identity of the party making such inquiry, proposal, offer or request (and, in the case of an entity, the ultimate beneficial owner thereof, if known to the Company). The Company shall keep Parent reasonably informed, on a prompt basis, of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals, offers or requests, and shall promptly (and in any event within 24 hours) provide to Parent a copy of all written (and a summary in reasonable detail of all oral) inquiries, proposals or offers, requests for information or requests for discussions or negotiations from any other person and all written due diligence materials or other information provided by or on behalf of the Company or any Subsidiary of the Company in connection therewith that was not previously provided to Parent.
(d) The Company Board shall not (i) withdraw, amend or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub, or publicly propose or announce an intent to, or resolve to, do any of the foregoing (any such action, an “Adverse Recommendation Change”), (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, or (iii) cause or permit the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to, or may reasonably be expected to lead to, any Acquisition Proposal, other than any confidentiality agreement permitted by Section 5.02(b).
(e) Notwithstanding the foregoing, if the Company has otherwise complied with its obligations under this Section 5.02, then at any time prior to the time when the Company Stockholder Approval has been obtained:
(i) upon having received an unsolicited bona fide written Acquisition Proposal that is not subsequently withdrawn and the Company Board concluding in good faith (A) after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with its outside legal counsel that taking such action is necessary to comply with its fiduciary duties to the Company Stockholders under applicable Law, the Company Board may make an Adverse Recommendation Change or publicly propose to make an Adverse Recommendation Change, or approve or recommend the Superior Proposal, or terminate this Agreement pursuant to Section 7.01(c), or make Company Rights Agreement Modifications or DGCL 203 Modifications with respect to the acquisition of Company Common Stock pursuant to such Superior Proposal; provided, however, that the Company Board shall not make an Adverse Recommendation Change, approve or recommend the Superior Proposal or terminate this Agreement pursuant to Section 7.01(c) or make such Company Rights Agreement Modifications or DGCL 203 Modifications, unless the Company has first (x) provided notice (“Notice of Superior Proposal”) to Parent that an Acquisition Proposal described in a Notice of Proposal previously furnished to Parent constitutes a Superior Proposal, (y) given Parent three (3) Business Days following Parent’s receipt of the Notice of Superior Proposal to propose revisions to the terms of this Agreement (or make another proposal) and (z) shall have negotiated during such three Business Day period in good faith with Parent with respect to such proposed revisions or other proposal, if any, and at the end of such period the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, that such Acquisition Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by Parent (it being understood and agreed that any amendment to any material term of such Acquisition Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period under clause (y).
(ii) In circumstances other than as provided in Section 5.02(e)(i) above, the Company Board may, if it determines in good faith, after consulting with outside legal counsel, that taking such action is necessary to comply with its fiduciary obligations under applicable Law, make an Adverse Recommendation Change, or publicly propose to make an Adverse Recommendation Change, but only after the Company has provided Parent with forty-eight (48) hours prior written notice that the Company Board is prepared to make the determination set forth in this clause (ii).
(f) Nothing contained in this Section 5.02 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 Company Board, after consultation with outside legal counsel, failure so to disclose would be inconsistent with its fiduciary obligations under applicable Law, it being understood, however, that this Section 5.02(f) shall not be deemed to permit the Company Board to make an Adverse Recommendation Change or take any of the actions referred to in clause (iv) of Section 5.02(a) except, in each case to the extent permitted by Section 5.02(e).
(g) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person or group (as such term is defined under Section 13(d) of the Exchange Act) (other than ParentParent or Merger Sub) conducted theretofore with respect relating to (i) any Takeover Proposal direct or indirect acquisition or purchase of more than 15% of the outstanding shares of Company Common Stock; (ii) any tender offer or exchange offer that, if consummated, would result in any person or group beneficially owning more than 15% of the outstanding shares of Company Common Stock; (iii) the direct or indirect acquisition of assets of the Company that generate or constitute 15% or more of the net revenues, net income or the assets (based on the fair market value thereof) of the Company; (iv) a merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution or other similar transaction involving the Company or any Significant Subsidiary (as defined in Rule 1-02(w) of Regulation S-X) of the Company; and request from each Person that has executed a confidentiality agreement with such Stockholder (v) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the prompt return Company or destruction any Subsidiary of the Company (including for this purpose the outstanding equity securities of the Subsidiaries of the Company) for consideration equal to 15% or more of the aggregate fair market value of all confidential information previously furnished of the shares of Company Common Stock outstanding on the date prior to such Person or its representativesthe date hereof, but in each case other than the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Image Entertainment Inc), Merger Agreement (BTP Acquisition Company, LLC)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from Following the date of this Agreement Agreement, the Company shall immediately cease any discussions or negotiations with any Person or group that may be ongoing with respect to any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities). From and after the date hereof until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with its terms, each Stockholder the Company shall not, and shall cause its respective representatives not to, directly or indirectly, : (ia) solicit, initiate, propose or knowingly take any action to encourage, facilitate or encourage (including by way of furnishing non-public information) permit the making, submission or announcement of any Takeover Acquisition Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information Acquisition Inquiry relating to the Company or any of its Subsidiaries to, afford access (other than the Excluded Entities) or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry relating to the business, properties, assets, personnel, books Company or records any of its Subsidiaries; (b) request or receive any non-public information from any Person or provide any non-public information to any Person in connection with an Acquisition Proposal or Acquisition Inquiry relating to the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iiiother than the Excluded Entities); (c) enter into, approve or recommend any understanding, agreement engage in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Acquisition Proposal or Acquisition Inquiry relating to the Company or any of its Subsidiaries (other than the Excluded Entities); (d) approve, endorse or recommend any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities); or (e) enter into any letter of intent or similar document or any Contract contemplating or providing for any Acquisition Transaction or any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities). Without limiting the generality of the foregoing, the Company acknowledges and request from each Person agrees that has executed any action taken by its representatives that, if taken by the Company would constitute a confidentiality agreement with breach of this Section 8.2, shall be deemed to constitute a breach of this Section 8.2 by the Company (whether or not such Stockholder representative is purporting to act on behalf of the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany).
Appears in 2 contracts
Sources: Business Combination Agreement (Boulevard Acquisition Corp. Ii), Business Combination Agreement (Boulevard Acquisition Corp. Ii)
No Solicitation. Except to the extent the (a) Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives Subsidiaries not to, and shall not authorize or permit any Representatives of Company or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate, propose knowingly encourage, cooperate in any with, assist or knowingly take any other action (including taking any affirmative action to facilitate exempt or encourage cause to be inapplicable as to any individual or entity (including by way of furnishing non-public informationother than Parent or its Subsidiaries) the submission provisions of Section 607.0901 or Section 607.0902 of the FBCA or any other analogous state Takeover Proposal Law) designed to result in or facilitate any inquiry, proposal or offer with respect to, or the announcement, making of or completion of, any proposal that constitutesAcquisition Proposal, or could any inquiry, proposal or offer that may reasonably be expected to lead toto any Acquisition Proposal, any Takeover Proposal; (ii) conductenter into, continue, engage in, solicit, continue or otherwise participate in any discussions negotiations regarding, or negotiations withfurnish to any Person other than Parent, disclose Merger Sub or any Representatives of the foregoing Persons, any non-public information or data (relating to the Company or any of its Subsidiaries or otherwise) with respect to, afford access to the businessany Acquisition Proposal or otherwise cooperate in any way with, properties, assets, personnel, books assist or records of the Company or facilitate any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party Person that could reasonably be expected is seeking to make, or has made, any Takeover an Acquisition Proposal or (iii) approve, recommend, declare advisable or enter into, approve or recommend into any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement agreement, letter of intent, term sheet or other Contract similar agreement relating to any Takeover Proposalan Acquisition Proposal or requiring Company to abandon, terminate or agree breach its obligations hereunder or commit fail to or agree to facilitate any of consummate the foregoingMerger. Each Stockholder Company shall, and shall cause each of its respective representatives Subsidiaries and shall use its commercially reasonable efforts to cause the Representatives of Company and its Subsidiaries to, (A) immediately cease and cause to be terminated any and all existing negotiations, discussions or negotiations activities with any Person and its Representatives (other than Parent, Merger Sub or any of their Representatives) conducted theretofore heretofore with respect to any Takeover Proposal and Acquisition Proposal, (B) request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction destruction, to the extent required by any confidentiality agreement, of all confidential information previously furnished to any such Person and its Representatives, and (C) not terminate, waive, amend, release or modify any provision of any standstill agreement (including any standstill provisions contained in any confidentiality or other agreement) to which it or any of its Affiliates or Representatives is a party, unless, solely with respect to this clause (C), the Company Board determines in good faith (after consultation with outside counsel) that such action would be reasonably likely to result in a breach of its fiduciary duties under Florida Law. Notwithstanding the foregoing, if, at any time following the date of this Agreement and prior to obtaining the Shareholder Approval, (1) Company receives a written Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Acquisition Proposal was not the result of a material violation of this Section 5.2(a), (3) the Company Board determines in good faith (after consultation with outside counsel and financial advisors) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in the following clause (x) or (y) would be inconsistent with its fiduciary duties under Florida Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to): (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement (a copy of which shall be provided to Parent, which copy may at Company’s election be redacted to exclude the identity of the Person making the Acquisition Proposal), provided, that any non-public information provided to any Person given such access 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; and (y) participate in negotiations with the Person making such Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal.
(b) The Company Board (i)(A) shall not fail to make and shall not withdraw (or modify or qualify in any manner adverse to Parent or publicly propose to withdraw, modify or qualify in any manner adverse to Parent) the approval, recommendation or declaration of advisability by the Company Board (or any committee thereof) of this Agreement, the Merger or any of the other transactions contemplated hereby, and (B) shall not adopt, approve, or publicly recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (each such action set forth in this Section 5.2(b)(i) being referred to herein as an “Adverse Recommendation Change”) and (ii) shall not cause or permit Company or any of its Subsidiaries to enter into any definitive acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement, partnership agreement or similar agreement (each, an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 5.2(a)). Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any time prior to obtaining the Shareholder Approval, and only following compliance with Section 5.2(c) and Section 5.2(d), the Company Board may, if the Company Board determines in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with its fiduciary duties under Florida Law, (i) make an Adverse Recommendation Change (A) in response to a bona fide written unsolicited Acquisition Proposal made after the date hereof or (B) in response to an Intervening Event or (ii) cause or permit Company to terminate this Agreement pursuant to Section 7.1(d)(ii) and promptly thereafter enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (a “Superior Proposal Termination”); provided, that no Adverse Recommendation Change may be made in response to an Acquisition Proposal and Company may not terminate this Agreement in order to enter into an Alternative Acquisition Agreement, unless the Company Board determines in good faith (after consultation with outside counsel and its financial advisors) that such Acquisition Proposal constitutes a Superior Proposal.
(c) Prior to effecting any Adverse Recommendation Change or Superior Proposal Termination, (1) Company shall notify Parent in writing, at least three Business Days prior to effecting such Adverse Recommendation Change or Superior Proposal Termination (the “Notice Period”), of its intention to effect such Adverse Recommendation Change or Superior Proposal Termination (which notice shall include the material terms and conditions of any Superior Proposal and the identity of the Person making such proposal (it being understood and agreed that any material amendment to the terms of such Superior Proposal shall require a new Notice Period of at least two Business Days), or, if in a response to an Intervening Event, shall include reasonable detail regarding the Intervening Event, (2) during the applicable Notice Period, Company shall negotiate with Parent in good faith (to the extent Parent wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement such that the Superior Proposal ceases to be a Superior Proposal or the Adverse Recommendation Change in response to the Intervening Event is no longer necessary, as applicable, and (3) at the end of the Notice Period, the Company Board shall determine in good faith (after consultation with outside legal counsel and financial advisors) that such Superior Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement proposed by Parent) or the Intervening Event continues to necessitate an Adverse Recommendation Change, as applicable.
(d) In addition to the obligations of Company set forth in Sections 5.2(a), (b) and (c), Company promptly (but in no event later than 24 hours) shall advise Parent in writing in the event that after the date hereof Company or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or (ii) any request for non-public information or to engage in negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal, in each case together with the material terms and conditions of such Acquisition Proposal or request, other than the identity of the Person making any such Acquisition Proposal or request. Company shall keep Parent reasonably 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, Company shall promptly notify Parent if Company determines to begin providing non-public information or to engage in negotiations concerning an Acquisition Proposal pursuant to Sections 5.2(a) or (b) and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice. Notwithstanding the foregoing or anything else in this Section 5.2 to the contrary, Company shall notify Parent in writing of the identity of any Person making such Acquisition Proposal (A) if Company (or any of its Subsidiaries or its or their Representatives) (x) continues to make available non-public information with respect to Company and its Subsidiaries to the Person making such Acquisition Proposal (or such Person’s Representatives) for a period of more than five Business Days following the date on which an Acceptable Confidentiality Agreement was entered into with such Person or (y) participates in negotiations concerning an Acquisition Proposal with the Person making such Acquisition Proposal (or such Person’s Representatives) and (B) at least five Business Days prior to commencing any Notice Period with respect to such Acquisition Proposal.
(e) Nothing contained in this Section 5.2 shall prohibit Company or the Company Board from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act, (ii) taking and disclosing a position contemplated by Rule 14e-2(a)(2) or (3) under the Exchange Act, provided, that any such action taken or disclosure made that relates to an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Company Board reaffirms the Company Board Recommendation in connection with such action or disclosure, or (iii) making any required disclosure to the shareholders of Company if, in the good faith judgment of the Company Board (after consultation with outside counsel), failure to so disclose would be inconsistent with its representativesfiduciary duties under Florida Law; provided, that in no event shall this Section 5.2(e) affect the obligations of Company specified in Sections 5.2(b), (c) and (d); and provided, further, that a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act shall not be deemed to be an Adverse Recommendation Change.
(f) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
No Solicitation. Except to (a) Until the extent the Company would be permitted under Section 6.04 earlier of the Merger Agreement to take such actions at the applicable time (Closing and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder Geron shall not, and shall cause will instruct its respective representatives Representatives not to, directly or indirectly, : (i) solicit, initiate, propose solicit or knowingly take any action to facilitate or encourage (including by way of furnishing non-public nonpublic information) the submission to Geron of any Takeover Proposal inquiries from any Person or the making of Persons relating to, or any proposal or offer from any Person or group of Persons that constitutes, or could would reasonably be expected to lead to, any Takeover a Stem Cell Assets Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations withwith a Person or Persons (or their respective Representatives) who have made, disclose any non-public information relating or to the Company or any Knowledge of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party Geron have indicated that could reasonably be expected to they may make, or has made, any Takeover a Stem Cell Assets Acquisition Proposal or with respect to such Stem Cell Assets Acquisition Proposal; (iii) enter into, approve or recommend adopt a Stem Cell Assets Acquisition Proposal or cause or permit Geron to enter into any understandingmerger agreement, letter of intent, agreement in principle, letter of intent, term sheet, acquisition share purchase agreement, merger asset purchase agreement, share exchange agreement, option agreement, joint venture agreement, partnership confidentiality agreement or other Contract relating to any Takeover Proposal, similar agreement in connection with or providing for a Stem Cell Assets Acquisition Proposal or negotiations in respect of the same; or (iv) agree or commit publicly announce any intention to or agree to facilitate take any of the foregoingforegoing actions. Each Stockholder Geron shall, and shall cause its respective representatives instruct Geron’s Representatives to, cease immediately cease and be terminated terminate any and all existing discussions or and negotiations with any Person Persons conducted heretofore with respect to, or that would reasonably be expected to lead to, a Stem Cell Assets Acquisition Proposal, and Geron shall promptly terminate or cause to be terminated any information access by any such Persons (including by way of a datasite or similar medium) and promptly request that all confidential information furnished be returned or destroyed in accordance with any written agreement with such Persons, to the extent applicable. A “Stem Cell Assets Acquisition Proposal” shall mean any offer or proposal, whether written or oral, to acquire more than an immaterial portion of the Contributed Geron Assets (other than Parent(A) conducted theretofore any offer proposed by BioTime or any of its Affiliates and (B) any offer or proposal by any Person with respect to any Takeover Proposal and request from each Person a Change of Control of Geron that has executed a confidentiality agreement with such Stockholder would not reasonably be expected to adversely affect, materially delay or prevent the prompt return or destruction consummation of all confidential information previously furnished to such Person or its representativesthe Transactions).
Appears in 2 contracts
Sources: Asset Contribution Agreement (Biotime Inc), Asset Contribution Agreement (Geron Corp)
No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives (including investment bankers, attorneys and accountants), agents or affiliates not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage inencourage, solicit, initiate or otherwise participate in any way in any discussions or negotiations with, disclose or provide any non-public information relating to the Company or any of its Subsidiaries to, or afford any access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, otherwise take any other action to assist or facilitate, encourageany Person or group (other than Parent or Purchaser or any affiliate or associate of Parent or Purchaser) concerning any Acquisition Proposal (as defined below) or the possible making of any Acquisition Proposal. Notwithstanding the foregoing and subject to compliance with Section 6.02(b) and the prior execution by such Person or group of a confidentiality agreement on terms no less favorable to the Company than those set forth in those provisions of the Mutual Confidentiality Agreement, or knowingly assist any effort bydated as of September 25, any third party that could reasonably be expected to make2000, or has madebetween the Company and Deutsche Bank Americas Holding Corporation (the "Confidentiality Agreement") protecting information supplied by the Company, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit the Company may furnish information to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing enter into discussions or negotiations with any Person or entity that has made an unsolicited bona fide Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes or is reasonably likely to result in a Superior Proposal if, and only to the extent that, the Board of Directors of the Company determines in good faith that to do so is required by the fiduciary duty of the Board of Directors of the Company to the stockholders of the Company under applicable law.
(b) The Company will notify Parent and Purchaser, orally and in writing, promptly, and in any event within one business day thereafter, if any such information is requested or any such negotiations or discussions are sought to be initiated and will immediately communicate to Parent and Purchaser the identity of the Person or group making such request or inquiry (the "Potential Acquiror") and any other material terms of such request, inquiry or Acquisition Proposal. If the Company (or any of its Subsidiaries or its or their respective officers, directors, employees, representatives, agents or affiliates) participates in discussions or negotiation with, or provides information to, a Potential Acquiror, the Company will keep Parent advised on a current basis of any material developments with respect thereto.
(c) 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 theretofore prior to the date hereof with respect to any Takeover Acquisition Proposal.
(d) Except as expressly permitted by this Section 6.02, the Company shall not (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation of the Offer or the Merger as set forth in Section 1.02(a), (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, (iii) release any third party from any confidentiality or standstill agreement to which the Company is a party or fail to enforce to the fullest extent possible, or grant any waiver, request or consent to any Acquisition Proposal under, any such agreement or (iv) enter into any letter of intent, agreement in principle, acquisition agreement or other agreement related to any Acquisition Proposal. Notwithstanding the foregoing, the Company may, prior to the acceptance for payment of Shares pursuant to the Offer, (x) take any of the actions described in clauses (i), (ii) or (iii) above or (y) terminate this Agreement in accordance with Section 8.01(e) and take any of the actions described in clause (iv) above, but only if, prior to taking such action, the Board of Directors of the Company receives a Superior Proposal and request determines in good faith that it is necessary to do so to comply with its fiduciary obligations under applicable law. Without limiting any other rights of Parent and Purchaser under this Agreement in respect of any such action, any withdrawal or modification by the Company of the approval or recommendation of the Offer or the Merger shall not have any effect on the approvals of, and other actions referred to herein for the purpose of causing Takeover Laws and the Existing Stockholder Agreement to be inapplicable to or otherwise permit, this Agreement, the Stockholder Tender Agreement and the transactions contemplated hereby and thereby, which approvals and actions are irrevocable.
(e) Nothing contained in this Section 6.02 shall prohibit the Company or its Board of Directors from each taking and disclosing to the Company's stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or taking any other action required under applicable law.
(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 by a Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished group at any time which is structured to permit such Person or group to acquire beneficial ownership of any material portion of the assets of, or at least 15% of the equity interest in, or businesses of, the Company pursuant to a merger, 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 the Offer and the Merger and (ii) "Superior Proposal" means any bona fide Acquisition Proposal not solicited in violation of this Section 6.02 made after the date hereof in writing in respect of which the Board of Directors of the Company has determined in good faith (A) after receiving the opinion of its representativesindependent financial advisors to such effect, that the Potential Acquiror has the financial wherewithal to consummate such Acquisition Proposal without having to obtain new financing other than financing as to which it has obtained or is reasonably capable of obtaining binding commitments from reputable sources, (B) after receiving the opinion of its independent financial advisors to such effect, that such Acquisition Proposal would involve consideration that is superior to the consideration under the Offer and the Merger and (C) after receiving the advice of its outside counsel and independent financial advisors to such effect, that such Acquisition Proposal is reasonably likely to be consummated without undue delay.
Appears in 2 contracts
Sources: Merger Agreement (Deutsche Bank Ag\), Merger Agreement (Deutsche Bank Ag\)
No Solicitation. (a) Except to as permitted by this Section 6.3, during the extent Pre-Closing Period, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause each Acquired Company not to, and shall not authorize its and their respective representatives Representatives to, and shall direct its Representatives not to, directly or indirectly, (i) solicit, initiate, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; , (ii) conduct, continue, engage in, solicit, continue or otherwise participate in any discussions (except to notify a Person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 6.3 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal) or negotiations withregarding, disclose or furnish to any non-public other Person any information relating to in connection with or for the Company purpose of soliciting, knowingly encouraging or facilitating, an Acquisition Proposal or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books proposal or records of the Company or any of its Subsidiaries tooffer that constitutes, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to makelead to, or has madean Acquisition Proposal, any Takeover Proposal or (iii) enter intoadopt, approve or recommend enter into any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreementagreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that constitutes, option agreementor could reasonably be expected to lead to, joint venture agreementan Acquisition Proposal or (iv) waive or release any Person from, partnership fail to use reasonable best efforts to enforce any standstill agreement or other any standstill provisions of any Contract relating entered into in respect of an Acquisition Proposal or any proposal or offer that constitutes or could reasonably be expected to any Takeover lead to an Acquisition Proposal. The Company and its directors, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder officers and employees shall, and the Company shall use reasonable best efforts to cause its respective representatives other Representatives to, immediately within one (1) Business Day of the Agreement Date, (A) cease and cause to be terminated any solicitation and any and all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal or any proposal or offer that constitutes, or could reasonably be expected to lead to, Acquisition Proposal, (B) terminate access by any Person (other than Parent, Purchaser, the Company or any of their respective Affiliates or Representatives) conducted theretofore with respect to any Takeover physical or electronic data room relating to any potential Acquisition Proposal or any proposal or offer that constitutes, or could reasonably be expected to lead to, Acquisition Proposal, and request from each Person that has executed a confidentiality agreement with such Stockholder (C) request, in writing, the prompt return or destruction of all confidential information of the Acquired Companies previously furnished or made available to such Persons.
(b) Notwithstanding Section 6.3(a)(i), if at any time on or after the Agreement Date and prior to the Offer Acceptance Time, the Company or any of its Representatives receives an unsolicited bona fide written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made on or after the Agreement Date and did not result from or arise out of any material breach of this Section 6.3 (including any of the provisions of Section 6.3(a)), and the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Offer (and the Company provides Parent with written notice of this determination), then the Company and its Representatives may (i) furnish, pursuant to (but only pursuant to) an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company to the Person or group of Persons who has made such Acquisition Proposal; provided, that the Company shall substantially concurrently provide to Parent any information concerning the Company that is provided to any Person given such access which was not previously provided to Parent or its Representatives and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal.
(c) Following the Agreement Date, the Company shall (i) promptly (and in any event within forty-eight (48) hours) notify Parent of any inquiry, proposal or offer received by the Company or any of its Representatives with respect to, or that would reasonably be expected to lead to an Acquisition Proposal, including the identity of the Person(s) making such inquiry, proposal or offer, (ii) promptly (and in any event within forty-eight (48) hours) provide to Parent a summary of the material terms and conditions of any Acquisition Proposal or any such inquiry, proposal or offer, and a complete copy of any written proposal, written offer or other written material with respect to such Acquisition Proposal or such inquiry, proposal or offer (or an amendment thereto), including copies of any proposed Specified Agreement or any term sheet or letter of intent or other documents or materials delivered in connection therewith, including any financing documentation (or reasonable summaries thereof if providing copies thereof is prohibited by the terms of a confidentiality agreement with such Persons or group of Persons), (iii) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Acquisition Proposal or any such inquiry proposal or offer on a reasonably prompt basis, and (iv) reasonably inform Parent of the status of any Acquisition Proposal or any such inquiry, proposal or offer.
(d) Nothing in this Agreement, including this Section 6.3, shall restrict the Company from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act or (iii) making any legally required disclosure to the stockholders of the Company (provided, that such disclosure includes an express reaffirmation of the Company Board Recommendation), (iv) communicating with any Person or group of Persons (or the representatives of such Person or its representativesgroup of Persons) that makes any Acquisition Proposal to the extent necessary to direct such Person or group of Persons to the provisions of this Section 6.3 and/or to clarify and understand the terms and conditions of an Acquisition Proposal made by such Person or group of Persons and none of the foregoing actions shall be deemed to constitute a Company Adverse Change Recommendation; provided that, for the avoidance of doubt, this Section 6.3(d) shall not be deemed to permit the Company Board to make a Company Adverse Change Recommendation except to the extent permitted by and in accordance with Section 7.1(b)).
Appears in 2 contracts
Sources: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
No Solicitation. Except to (a) Until the extent the Company would be permitted under Section 6.04 earlier of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, or the termination of this Agreement in accordance with Agreement, the Company agrees that neither it nor any of its termssubsidiaries, each Stockholder shall notnor any of the officers, directors or employees of it or its subsidiaries shall, and it shall direct and use its best efforts to cause its respective and its subsidiaries' representatives and agents (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its subsidiaries), not to, directly or indirectly, (i) solicit, initiate, propose solicit or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of information or assistance), or take any Takeover Proposal other action knowingly to facilitate, any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any Takeover person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal; provided, however, that nothing in this Agreement shall prohibit the Company Board from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (ii) conduct, continue, engage in, solicitfurnishing information to, or otherwise participate in any entering into discussions or negotiations with, disclose any non-public information relating person or entity that makes an unsolicited Acquisition Proposal after the date of this Agreement, if, in the case referred to in clause (ii) above, the Company Board, after consultation with and based upon the advice of independent legal counsel, determines in good faith that such action is likely to be required for the Company Board to comply with its fiduciary duties to stockholders under applicable law and, prior to taking such action, the Company receives from such person or entity an executed confidentiality agreement in reasonably customary form. For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer or proposal regarding any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its Subsidiaries tosubsidiaries: (w) any merger, afford access to consolidation, share exchange, recapitalization, business combination or other similar transaction; (x) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the business, properties, assets, personnel, books or records assets of the Company and its subsidiaries, taken as a whole, in a single transaction or series of related transactions; (y) any tender offer or exchange offer for 20 percent or more of the outstanding shares of Company Common Stock or the filing of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected agreement to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement engage in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representatives.
Appears in 2 contracts
Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (St Jude Medical Inc)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from a) From the date of this Agreement until to the earlier to occur of the Effective Time or, if earlier, of the Merger or the termination of this Agreement in accordance with its termsAgreement, each Stockholder Combining Company and its Subsidiaries shall not, and nor shall cause such Combining Company or its Subsidiaries permit any of their respective representatives not toofficers, directors or managers (or authorize any Affiliates of any such officers, directors or managers), Affiliates, or employees or any investment banker, attorney, accountant or other advisor or representative retained by (or otherwise working on behalf of) such Combining Company or any of its Subsidiaries (collectively, “Representatives”) to directly or indirectly, : (i) solicit, initiate, propose initiate or knowingly encourage, knowingly facilitate or knowingly induce any inquiry with respect to, the making, submission or announcement of any Acquisition Proposal with respect to such Combining Company or any of its Subsidiaries, (ii) participate or otherwise engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Proposal; Acquisition Proposal with respect to such Combining Company or any of its Subsidiaries, (iiiii) conductengage in discussions with any person with respect to any Acquisition Proposal with respect to such Combining Company or any of its Subsidiaries, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal with respect to such Combining Company or any of its Subsidiaries to, afford access (except to the businessextent specifically permitted pursuant to Section 5.2(c)), properties, assets, personnel, books or records (v) enter into any letter of the intent or similar document or any contract contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby with respect to such Combining Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoingSubsidiaries. Each Stockholder shallCombining Company and its Subsidiaries will immediately cease, and shall will cause its respective representatives toRepresentatives to immediately cease, immediately cease and be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Proposal Acquisition Proposal. The foregoing provisions of this Section 5.2(a) shall not prohibit the taking of any actions by the Combining Companies and request from each Person that has executed their Subsidiaries and their respective Representatives in connection with (x) any of the Subscription Offers or (y) a confidentiality agreement with such Stockholder potential initial public offering of either Combining Company or their Subsidiaries occurring following the prompt return earlier to occur of the Effective Time of the Merger or destruction the termination of all confidential information previously furnished to such Person or its representativesthis Agreement.
Appears in 2 contracts
Sources: Combination Agreement (Nine Energy Service, Inc.), Combination Agreement (Nine Energy Service, Inc.)
No Solicitation. Except (a) Subject to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith)6.1(b) hereof, from the date of this Agreement Date until the Effective Time Acceptance Time, or, if earlier, the valid termination of this Agreement in accordance with its termsSection 7.1 hereof, each Stockholder the Company shall not, and the Company shall cause its Subsidiaries and their respective representatives officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents and advisors (collectively, “Representatives”) not to, directly or indirectly, :
(i) solicit, initiate, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing providing non-public information) the submission or announcement of any Takeover Proposal inquiries, proposals or the making of any proposal offers that constitutes, constitute or could would reasonably be expected to lead to, any Takeover result in an Acquisition Proposal; ;
(ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose provide any non-public information relating to concerning the Company or any of its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal;
(iii) engage in any discussions or negotiations with any Person with respect to any Acquisition Proposal;
(iv) approve, adopt, endorse or recommend any Acquisition Proposal; or
(v) enter into any agreement, letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction or enter into any agreement, letter of intent or similar document requiring the Company to exempt any third party from the restrictions contained in any state takeover or similar Laws or otherwise cause such restrictions not to apply to such third party or to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in Section 6.1(a) hereof or any other provisions of this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide written Acquisition Proposal (other than an Acquisition Proposal that arises as a result of a breach of any of the provisions set forth in Section 6.1(a) hereof) that is reasonably likely to result in a Superior Proposal, (ii) the Company Board determines in good faith, after having consulted with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the Company Shareholders and other stakeholders of the Company under applicable Law, (iii) prior to furnishing or making available any non-public information to, afford access or entering into discussions or negotiations with such Person, the Company gives Parent written notice of the identity of the Person making the Acquisition Proposal and of the Company’s intention to furnish or make available non-public information to, or enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions and use restrictions) at least as favorable to the businessCompany as the provisions of the Confidentiality Agreement, propertiesand (iv) simultaneously with furnishing or making available any non- public information to such Person, assetsthe Company makes available such non-public information to Parent (to the extent the Company has not previously made available such non-public information to Parent), personnelthen the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and (B) engage in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal.
(c) The Company shall promptly (and, books or records in any event, within one (1) Business Day) notify Parent in the event that the Company, any Subsidiary of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist their respective Representatives receives any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Acquisition Proposal, or agree or commit to or agree to facilitate any including the identity of the foregoingPerson making such Acquisition Proposal, and the material terms and conditions thereof and, if applicable, shall provide Parent with copies of any written requests, proposals or offers from the Person making such Acquisition Proposal promptly after receipt thereof. Each Stockholder The Company shall keep Parent informed with respect to: (i) the status of any such Acquisition Proposal; and (ii) the status and material terms of any material modification thereto.
(d) The Company shall, and shall cause each of its respective representatives Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any and all existing solicitations or discussions or negotiations with any Person (other than Parent) conducted theretofore ongoing as of the date of this Agreement with respect to any Takeover Proposal actual or potential Acquisition Proposal.
(e) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to which the Company is a party or under which the Company has any rights to the extent permitted thereunder, and will use commercially reasonable efforts to cause each such agreement to be enforced (it being understood that any automatic termination of any such provision resulting from the execution and delivery of this Agreement shall not constitute a breach of this Section 6.1(e)). The Company also shall promptly request from each Person that has executed a confidentiality agreement with such Stockholder the prompt Company or its Subsidiaries within the last 18 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in the Company to return to the Company or destruction of destroy all confidential information previously heretofore furnished to such Person by or its representativeson behalf of the Company.
Appears in 2 contracts
Sources: Tender Offer Agreement, Tender Offer Agreement (Jazz Pharmaceuticals PLC)
No Solicitation. Except (i) Witco agrees that, during the 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 (A) solicit, initi- ate, encourage or 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 Witco, or acquisition of any capital stock or any material portion of the assets (except for acquisition of assets in the ordinary course of business consistent with past practice, transactions disclosed in the Witco Disclosure Schedule and the transactions contemplated by this Agreement) of Witco, or any combination of the foregoing (a "Witco Competing Transaction") or (B) negotiate, explore or otherwise engage in discussions with any person (other than Crompton or Newco or their respective directors, officers, employees, agents and representatives) with respect to any Witco Competing Transaction. Witco will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any of the foregoing and shall use its reasonable best efforts to enforce any confidentiality or similar agreement relating to a Witco Competing Transaction. From and after the execution of this Agreement, Witco shall immediately advise Crompton in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to a Witco Competing Transaction (including the specific terms thereof), and promptly furnish to Crompton a copy of any such proposal or inquiry in addition to any information provided to or by any third party relating thereto. Notwithstanding the foregoing, prior to receipt of the Witco Stockholders Approval, Witco may, but only to the extent required by the Company fiduciary obligations of its Board of Directors under Applicable Law, as determined in good faith and on a reasonable basis by such Board of Directors and based on the written advice of outside counsel that not to so act would be permitted under constitute a violation of such fiduciary obligations, in response to a publicly disclosed proposal for a Witco Competing Transaction that constitutes a Qualifying Witco Proposal that was not solicited or encouraged by Witco or its representatives and that did not otherwise result from the breach or a deemed breach of this Section 6.04 of the Merger Agreement to take such actions at the applicable time (7.3(c), and subject to compliance with the noticenotification provisions of this Section 7.3(c), disclosure for a 10-day period commencing with the first notification to Crompton under this Section 7.3(c) of receipt of such Witco Competing Transaction, (x) furnish non-public information with respect to Witco to the person proposing such Witco Competing Transaction and other its representatives pursuant to a confidentiality agreement with terms no less restrictive of such person than those set forth in the Confidentiality Agreement and (y) participate in discussions or negotiations with such person and its representatives regarding such Witco Competing Transaction.
(ii) Neither the Board of Directors of Witco nor any committee thereof shall (A) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Crompton, the approval or recommendation by the Board of Directors of Witco of this Agreement and the transactions contemplated hereby, (B) approve, or permit or cause Witco to enter into, any definitive agreement providing for the implementation of any Witco Competing Transaction (each a "Witco Acquisition Agreement") or (C) approve or recommend, or propose to approve or recommend, any Witco Competing Transaction. Notwithstanding the foregoing, prior to receipt of the Witco Stockholders Approval, and only to the extent required by the fiduciary obligations of the Witco Board of Directors under Applicable Law, as determined in good faith and on a reasonable basis by such Board of Directors and based on the written advice of outside counsel that not to so act would constitute a violation of such fiduciary obligations, in response to a publicly disclosed proposal for a Witco Competing Transaction that constitutes a Qualifying Witco Proposal that was not solicited or encouraged by Witco or its representatives and that did not other- wise result from the Company would be required to comply with breach or a deemed breach of this Section 7.3(c), (I) the Board of Directors of Witco may withdraw or modify its approval or recommendation of the transactions contemplated by this Agreement and, in connection therewith), from the date approve or recommend such Qualifying Witco Proposal and (II) Witco may enter into a Witco Acquisition Agreement contemporaneously with its termination of this Agreement until pursuant to Section 9.1(i).
(iii) Nothing contained in this Section 7.3(c) shall prohibit Witco from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Effective Time orExchange Act.
(iv) For purposes of this Agreement, if earlier"Qualifying Witco Proposal" means any proposal made by a third party to acquire all of the equity securities or all or substantially all of the assets of Witco, pursuant to a tender offer, a merger, a consolidation, a recapitalization, a sale of its assets or otherwise, that is (A) for consideration that is substantial (as reasonably determined by the Board of Directors of Witco) and is comprised solely of cash and not subject to financing contingencies, (B) on terms which a nationally recognized independent investment banking firm has opined in writing (with only customary qualifications) to be superior from a financial point of view to the holders of Witco Common Stock to the transactions contemplated by this Agreement, taking into account all of the terms and conditions of such proposal and this Agreement (including the terms of any proposal by Crompton to amend or modify the terms of the transactions contemplated by this Agreement), and (C) reasonably capable of being completed within 7 months of the termination of this Agreement in accordance with its termsAgreement, each Stockholder shall nottaking into account all financial, regulatory, legal and shall cause its respective representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way other aspects of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesproposal.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Crompton & Knowles Corp), Agreement and Plan of Reorganization (Witco Corp)
No Solicitation. Except (a) The Company and its Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly (and in any event within three (3) Business Days following the date hereof) request in writing that (i) each Person that entered into a confidentiality or other similar agreement with the Company or any of its Affiliates since January 1, 2008 and (ii) each Person to which the Company or any of its Affiliates furnished confidential information since January 1, 2008 under a confidentiality or other similar agreement existing as of such date, in each case in connection with a potential Acquisition Transaction, return or destroy (to the extent destruction of such information is permitted by such confidentiality agreement) all confidential information furnished to such Person by or behalf of the Company would thereunder. Such written requests shall contain a notice to each Person that any information that is sent or conveyed to the Company in the future will not be permitted under Section 6.04 of treated as confidential pursuant to any such confidentiality or other similar agreement.
(b) At all times during the Merger Agreement to take such actions at the applicable time (and subject to compliance period commencing with the notice, disclosure execution and other obligations that the Company would be required to comply with in connection therewith), from the date delivery of this Agreement and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Article VIII and the Appointment Time, the Company and its terms, each Stockholder Subsidiaries shall not, and shall use their reasonable best efforts to cause its any of their respective directors, officers or other employees, controlled Affiliates, or any investment banker, attorney or other advisors or representatives retained by any of them (collectively, the “Company Representatives”) not to (and shall not authorize any of them to), directly or indirectly, :
(i) solicit, initiate, propose or knowingly take any action to encourage, facilitate or encourage induce the making, submission or announcement of, any Acquisition Proposal or Acquisition Transaction;
(including by way ii) furnish to any Person (other than Parent, Merger Sub or any designees of furnishing Parent or Merger Sub) any non-public information) information relating to the submission Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any Takeover Proposal of its Subsidiaries to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub), or take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to any Takeover Proposal; Acquisition Proposal or Acquisition Transaction;
(iiiii) conduct, continue, participate or engage in, solicit, or otherwise participate in any discussions or negotiations withwith any Person with respect to any Acquisition Proposal or Acquisition Transaction;
(iv) approve, disclose endorse or recommend any Acquisition Proposal or Acquisition Transaction;
(v) execute or enter into any letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement as contemplated in this Section 6.1(b)) contemplating or otherwise relating to any Acquisition Proposal or Acquisition Transaction;
(vi) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than Parent); or
(vii) propose to take any of the foregoing actions. Notwithstanding the foregoing, prior to the Appointment Time, the Company Board may, directly or indirectly through Company Representatives, subject to the Company’s compliance with the provisions of this Section 6.1, (A) engage or participate in discussions or negotiations with any Person that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board reasonably concludes in good faith (after consultation with Jefferies & Co. or other financial advisor of nationally recognized standing and the Company’s outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal, and/or (B) furnish to any Person that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board reasonably concludes in good faith (after consultation with Jefferies & Co. or other financial advisor of nationally recognized standing and the Company’s outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal any non-public information relating to the Company or any of its Subsidiaries topursuant to a confidentiality and “standstill” agreement, afford access the terms of which are no less favorable to the business, properties, assets, personnel, books or records of Company than those set forth in the Confidentiality Agreement and those relating to “standstill” obligations set forth in the Exclusivity Agreement (and which expressly permits the Company to fulfill its obligations to Parent and Merger Sub under this Agreement), provided that (in the case of any action proposed to be taken pursuant to the foregoing clauses (A) or (B)), (1) neither the Company nor any of its Subsidiaries shall have breached or violated (or because of actions taken by any Company Representative, be deemed, pursuant to the terms of this Section 6.1, to have breached or violated) the terms of this Section 6.1, (2) the Company Board reasonably determines in good faith (after consultation with outside legal counsel) that such action is required in order to comply with its fiduciary duties to the Company Stockholders under Delaware Law, (3) prior to engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Person, the Company gives Parent written notice of the identity of such Person and all of the material terms and conditions of such Acquisition Proposal (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof) and of the Company’s intention to engage or participate in, facilitate, encouragein discussions or negotiations with, or knowingly assist furnish non-public information to, such Person, and (4) contemporaneously with furnishing any effort bynon-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such information has not been previously furnished by the Company to Parent).
(c) Without limiting the generality of the foregoing, Parent, Merger Sub and the Company acknowledge and hereby agree that any third violation of the restrictions set forth in this Section 6.1 by any Company Representative shall be deemed to be a breach of this Section 6.1 by the Company.
(d) In addition to the obligations of the Company set forth in Section 6.1(b), the Company shall promptly, and in all cases within twenty four (24) hours of its receipt, notify Parent orally and in writing (whether or not the Company is a party to or otherwise bound by a confidentiality or other similar agreement that purports to prohibit the Company from disclosing any of the following information) of the following: (i) any Acquisition Proposal; (ii) any request for information that could reasonably be expected to make, or has made, any Takeover Proposal lead to an Acquisition Proposal; or (iii) enter intoany inquiry with respect to, approve or recommend which could reasonably be expected to lead to, any understandingAcquisition Proposal, agreement in principlethe terms and conditions of such Acquisition Proposal, letter request or inquiry, and the identity of intentthe Person or group making any such Acquisition Proposal, term sheetrequest or inquiry. The Company shall keep Parent informed, acquisition agreementon a reasonably current basis, merger agreementof the status and material details of any such Acquisition Proposal, option agreementrequest or inquiry, joint venture agreementincluding material amendments or proposed amendments as to price, partnership agreement or closing conditions and other Contract material terms thereof.
(e) In addition to the foregoing, the Company shall give Parent prior written notice of any meeting of the Company Board at which the Company Board is reasonably expected to consider an Acquisition Proposal, an inquiry relating to any Takeover a potential Acquisition Proposal, or agree or commit a request to or agree provide nonpublic information to facilitate any Person, with Parent receiving a similar amount of notice of such meeting as is provided to members of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany Board.
Appears in 2 contracts
Sources: Merger Agreement (Autodesk Inc), Merger Agreement (Moldflow Corp)
No Solicitation. Except to the extent (a) Each of Parent and the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations agrees that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder it shall not, and shall cause its respective representatives Subsidiaries not to, and shall use its reasonable best efforts to direct its and its Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, propose encourage, or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of facilitate, any Takeover Proposal or the making of any proposal that constitutesmaking, announcement or could reasonably be expected to lead toconsummation thereof, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, enter into or otherwise participate in any discussions (except to notify a Person of the existence of the provisions of this Section 5.4) or negotiations regarding, or furnish to any Person any information (regardless of whether such information is material or already publicly available) in connection with, disclose or in furtherance of, any non-public information relating Takeover Proposal, (iii) waive, terminate, modify or fail to enforce any provision of any confidentiality or “standstill” or similar obligation of any Person (other than the Company other party hereto) with respect to a party or any of its Subsidiaries toSubsidiaries, afford access to the business(iv) approve, properties, assets, personnel, books adopt or records of the Company or any of its Subsidiaries torecommend, or participate inpublicly propose to approve, facilitate, encourage, adopt or knowingly assist any effort by, any third party that could reasonably be expected to make, or has maderecommend, any Takeover Proposal or submit to the vote of its shareholders any Takeover Proposal before the termination of this Agreement, (iiiv) enter into, or approve or recommend or publicly propose to approve or recommend the entering into of any understanding, agreement in principle, letter of intent, term sheetmemorandum of understanding, acquisition agreement, amalgamation or merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract agreement, arrangement or understanding relating to any Takeover ProposalProposal before the termination of this Agreement (other than a confidentiality agreement referred to in the proviso to the last sentence of this Section 5.4(a)), or agree (vi) authorize any of, or commit to or agree to facilitate do any of of, the foregoing. Each Stockholder of Parent and the Company (A) shall, and shall cause its respective representatives Subsidiaries to, and shall use its reasonable best efforts to direct its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any Person (other than Parentthe other party hereto and its Representatives) conducted theretofore heretofore with respect to any Takeover Proposal and request (B) shall immediately take all steps necessary to terminate any approval under any confidentiality or “standstill” or similar provision that may have been heretofore given by Parent or the Company under any such provisions authorizing any Person to make a Takeover Proposal. Notwithstanding the foregoing, the restrictions in clauses (i), (ii), (iii) and, to the extent applicable thereto, (vi) of the first sentence of this Section 5.4(a) shall not prohibit Parent or its Subsidiaries and Representatives, on the one hand, or the Company or its Subsidiaries and Representatives, on the other hand, at any time before obtaining the Parent Share Issuance Vote or the Company Merger Vote, as the case may be, from each participating in any discussions or negotiations regarding, furnishing to any Person any information with respect to, or waiving, modifying or electing not to enforce any confidentiality or “standstill” or similar obligation of any Person in respect of a Takeover Proposal (including with respect to the following proviso) that has executed been publicly announced or otherwise communicated to its officers or its board of directors, if its board of directors (or an authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel and financial advisor, that such Takeover Proposal would reasonably be likely to lead to a Superior Proposal; provided that (I) before a party furnishing any information to, or negotiating with, any Person with respect to a Takeover Proposal, such party shall have entered into a confidentiality agreement with such Stockholder Person containing confidentiality terms and “standstill” or similar obligations not less restrictive in the prompt return or destruction of all confidential information previously furnished aggregate to such Person and its Representatives than the provisions of the Confidentiality Agreement are to Parent and its Representatives (in the case of the Company furnishing information to, or negotiating with, any Person) or the Company and its Representatives (in the case of Parent furnishing information to, or negotiating with, any Person), and (II) all such information has previously been made available to the Company and its Representatives (in the case of Parent furnishing information to any Person) or Parent and its Representatives (in the case of the Company furnishing information to any Person) or will be so made available substantially concurrent with the time it is provided to such Person.
(b) Neither the board of directors of Parent or the Company nor any committee thereof shall (i) withhold, withdraw, modify or qualify the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company) in a manner adverse to the Company or Parent, as applicable, (ii) fail to include the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company) in the Joint Proxy Statement/Prospectus, or (iii) recommend or publicly propose to recommend any Takeover Proposal (any action described in clause (i), (ii) or (iii) being referred to as a “Recommendation Withdrawal”); provided, however, that (A) the delivery by a party, its board of directors or an authorized and empowered committee thereof of any notice specified in Section 5.4(d) shall not be deemed to be or constitute a Recommendation Withdrawal, (B) the provision of factual information by a party to its shareholders shall not be deemed to be or constitute a Recommendation Withdrawal so long as the disclosure through which such factual information is conveyed, taken as a whole, is not contrary to or materially inconsistent with the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company), and (C) for purposes of the definition of Recommendation Withdrawal, (I) in the case of Parent, the term “Parent Recommendation” shall refer only to the recommendation by the board of directors of Parent in respect of the Parent Share Issuance Vote and (II) in the case of the Company, the term “Company Recommendation” shall refer only to the recommendation by the board of directors of the Company in respect of the Company Merger Vote.
(c) Notwithstanding anything to the contrary contained in this Agreement and subject to compliance with Section 5.4(d): (i) at any time before obtaining the Company Merger Vote, the Company’s board of directors (or an authorized and empowered committee thereof) may make a Recommendation Withdrawal (A) in response to, or as a result of, a material event, development, occurrence, or change in circumstances or facts, occurring after the date hereof (which event, development, occurrence, circumstances or facts was not known to be reasonably likely to occur by the Company’s board of directors (or applicable authorized and empowered committee thereof) as of the date hereof) (a “Company Intervening Event”) or (B) in response to a Takeover Proposal that the Company’s board of directors (or applicable authorized and empowered committee thereof) shall have determined in good faith, after consultation with its outside legal counsel and financial advisor, constitutes a Superior Proposal, in each case, if the Company’s board of directors (or applicable authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary (or similar) duties under applicable Law; and (ii) at any time before obtaining the Parent Share Issuance Vote, the board of directors of Parent (or an authorized and empowered committee thereof) may make a Recommendation Withdrawal in response to, or as a result of, a material event, development, occurrence, or change in circumstances or facts, occurring after the date hereof (which event, development, occurrence, circumstances or facts was not known to be reasonably likely to occur by Parent’s board of directors (or applicable authorized and empowered committee thereof) as of the date hereof) (a “Parent Intervening Event”) if such Parent’s board of directors (or applicable authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary (or similar) duties under applicable Law. Notwithstanding anything to the contrary contained in this Agreement, (x) no event, development, occurrence, circumstance or fact that affects or relates to Parent or any of its Subsidiaries shall be deemed to be, or contribute to, any Company Intervening Event unless such event, development, occurrence, circumstance or fact also affects or relates to the Company and/or any of its Subsidiaries, and, in such case, the board of directors of the Company (or applicable authorized and empowered committee thereof) shall only consider the extent to which such event, development, occurrence, circumstance or fact affects or relates to the Company and its Subsidiaries (not including any effect on Parent and its Subsidiaries) in determining whether a Recommendation Withdrawal is appropriate in response to such Company Intervening Event, (y) no event, development, occurrence, circumstance or fact that affects or relates to the Company or any of its Subsidiaries shall be deemed to be, or contribute to, any Parent Intervening Event unless such event, development, occurrence, circumstance or fact also affects or relates to Parent and/or any of its Subsidiaries, and, in such case, the board of directors of Parent (or applicable authorized and empowered committee thereof) shall only consider the extent to which such event, development, occurrence, circumstance or fact affects or relates to Parent and its Subsidiaries (not including any effect on the Company and its Subsidiaries) in determining whether a Recommendation Withdrawal is appropriate in response to such Parent Intervening Event and (z) with respect to Parent, no Takeover Proposal shall be deemed to be a Parent Intervening Event unless (1) such Takeover Proposal is bona fide and in writing, (2) such Takeover Proposal has not been obtained in breach of Section 5.4 and (3) the board of directors of Parent (or applicable authorized and empowered committee thereof) has determined, in the good faith exercise of its fiduciary (or similar) duties, that it shall recommend such Takeover Proposal to its shareholders. For purposes of this Section 5.4(c), each reference to “10% or more” in the definition of “Takeover Proposal” shall be deemed to be a reference to “more than 50%.” For the avoidance of doubt, no increase in the share price of Parent or Company from the date hereof shall be deemed to be a Parent Intervening Event or Company Intervening Event, respectively, provided that this limitation shall not prevent or otherwise affect a determination that any material event, development, occurrence, or change in circumstances or facts underlying such increase in share price has resulted in a Parent Intervening Event or Company Intervening Event.
(d) Notwithstanding anything to the contrary contained in this Agreement, neither party’s board of directors (nor any authorized and empowered committee thereof) shall be entitled to make a Recommendation Withdrawal under Section 5.4(c), unless (i) such party shall have provided to the other party at least three Business Days before taking such action written notice that it intends to make a Recommendation Withdrawal and specifying the reasons therefor (and, if applicable, the information required by Section 5.4(f)), (ii) during such three Business Day period, if requested by the other party, the party delivering such written notice shall have engaged in good faith negotiations with the other party regarding any amendment or waiver to this Agreement proposed by the other party which shall be kept confidential by such party (except to the extent required to be disclosed under applicable Law), (iii) such party has not materially breached its obligations under this Section 5.4 and (iv) solely in the case of a Recommendation Withdrawal by the Company’s board of directors (or an authorized and empowered committee thereof) in response to a Takeover Proposal, the Company’s board of directors (or an authorized and empowered committee thereof) shall have determined, after taking into account all amendments and waivers to this Agreement made in response to such Takeover Proposal, and after consultation with its outside legal counsel and financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal. The parties agree that any amendment to the financial terms (which shall include any change in (x) the form of consideration or (y) the percentage or allocation of form of consideration) or other material terms and conditions of a Takeover Proposal described in clause (i) above shall require a party to provide new written notification and shall commence a new three Business Day period under this Section 5.4(d).
(e) Notwithstanding anything to the contrary contained in this Agreement, the obligation of each of Parent and the Company to call, give notice of, convene and hold the Parent Shareholder Meeting (in the case of Parent) and the Company Shareholder Meeting (in the case of the Company) and to hold a vote of its shareholders for purposes of obtaining the Required Parent Vote or the Required Company Vote, as applicable, shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Takeover Proposal (whether or not a Superior Proposal) or by a Recommendation Withdrawal made by it. If a party makes a Recommendation Withdrawal under Section 5.4(c), (i) such party shall nevertheless submit the matters contemplated by the Required Parent Vote or the Required Company Vote, as applicable, to a vote of its shareholders and (ii) the Joint Proxy Statement/Prospectus or the Company Shareholder Materials, as applicable, and any and all accompanying materials may include appropriate disclosure with respect to such Recommendation Withdrawal in accordance with applicable Law after consultation with outside legal counsel.
(f) Each party shall as promptly as practicable (and in any event within 24 hours after receipt) advise the other party orally and in writing of (i) any Takeover Proposal (or any withdrawal thereof), (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal and (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include the material terms and conditions of any such Takeover Proposal, request or inquiry (including a copy of any such written Takeover Proposal, request or inquiry and any amendments or modifications thereto or if oral, a written summary thereof) and the identity of the Person making the Takeover Proposal, request or inquiry. Each of Parent and the Company shall keep the other fully informed on a reasonably current basis of the status of any such Takeover Proposal, request or inquiry, including any changes to the material terms and conditions thereof. Each party shall as promptly as practical (and in any event within 24 hours after becoming aware thereof) advise the other party orally and in writing of events, developments, occurrences or changes in circumstance that resulted in a Company Intervening Event or Parent Intervening Event, as applicable, in sufficient detail as to allow the other party to analyze and (if appropriate) respond to such event.
(g) Nothing contained in this Section 5.4 shall prohibit a party or its representatives.board of directors from (i) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act (including a “stop, look and listen” communication to Rule 14d-9(f) under the Exchange Act) or (ii) making any disclosure to its shareholders if its board of directors determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law; provided that any such action tak
Appears in 2 contracts
Sources: Merger Agreement (ALTERRA CAPITAL HOLDINGS LTD), Merger Agreement (Markel Corp)
No Solicitation. Except The Company agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries), and any party to the extent the Company would be permitted under Section 6.04 of the Merger a Stockholder Agreement to take such actions at the applicable time (shall, and subject to compliance with the notice, disclosure and other obligations that the Company would be required shall use reasonable efforts to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with cause its terms, each Stockholder shall not, and its Subsidiaries' other employees and affiliates not to (and shall cause its respective representatives not authorize any of them to, ) directly or indirectly, : (i) solicit, initiate, propose encourage, knowingly facilitate or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 5.3(f)) with respect to itself, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Proposal; Acquisition Proposal with respect to itself, (iiiii) conductapprove, continue, engage in, solicitendorse or recommend any Acquisition Proposal with respect to itself (except to the extent specifically permitted pursuant to Section 5.3(d)), or (iv) enter into any letter of intent or similar document or any Contract or commitment contemplating or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the any Acquisition Proposal or transaction contemplated thereby with respect to itself. The Company and its Subsidiaries and any of their respective officers, directors, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries toSubsidiaries), afford access and any party to the businessa Stockholder Agreement will immediately cease, properties, assets, personnel, books or records of and the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected shall use reasonable efforts to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives toand its Subsidiaries' other employees and affiliates to cease, immediately cease and be terminated any and all existing activities, discussions or negotiations with any Person third parties (other than Parent, Merger Sub and their representatives) conducted theretofore heretofore with respect to any Takeover Acquisition Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished respect to such Person or its representativesitself.
Appears in 2 contracts
Sources: Merger Agreement (Probusiness Services Inc), Merger Agreement (Automatic Data Processing Inc)
No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its the Company Subsidiaries and the Company’s and the Company Subsidiaries’ respective representatives Representatives not to, directly or indirectly, :
(i) solicit, initiate, propose encourage, or knowingly take any action to knowingly facilitate the submission of, or encourage any inquiries with respect to, any Acquisition Proposal by a Third Party,
(including ii) participate in any discussions or negotiations with a Third Party or such Third Party’s Representatives regarding, or furnish to any Third Party or Third Party’s Representative, any information or data with respect to, or otherwise cooperate in any way with respect to, or assist or participate in, any Acquisition Proposal or any potential Acquisition Proposal,
(iii) enter into any letter of intent, memorandum of understanding, acquisition agreement or other agreement, arrangement, or understanding that contemplates an Acquisition Proposal by way such Third Party or requiring the Company to terminate, abandon, or fail to consummate the Transactions, or
(iv) approve, adopt, endorse, or recommend to its shareholders or any other person any Acquisition Proposal; provided, however, that prior to the Merger being approved by the Required Shareholder Vote, the Company and its Representatives, in connection with any bona fide written Acquisition Proposal received by the Company or any of furnishing non-public informationits Representatives without any material violation of clause (i) above, may furnish information and data to a Third Party or such Third Party’s Representatives and take any other action referred to in clause (ii) above, if:
(A) the submission Company Board determines in good faith, after consultation with outside legal counsel, that failing to take such action would result in a breach by the Company Board of any Takeover its fiduciary duties to the Company and its shareholders under applicable Law,
(B) the Company Board determines in good faith that the Acquisition Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, a Superior Proposal,
(C) at least forty-eight (48) hours prior to initially furnishing or otherwise disclosing any Takeover such information or data or initiating or participating in any such negotiations or discussions with such Third Party or such Third Party’s Representatives, the Company gives Parent written notice of such Acquisition Proposal; , including a copy thereof and the identity of such Third Party, and of the Company’s intention to furnish information or data to or to engage in negotiations or discussions with such Third Party or such Third Party’s Representatives, and
(D) prior to providing any information or data to such Third Party or Third Party’s Representatives, the Company enters into a confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement and which shall not contain restrictions that would prevent the Company from complying with its disclosure obligations in this Section 6.2. In addition, prior to or contemporaneously with providing any information or data (whether initially or pursuant to subsequent deliveries of information or data) to such Third Party or such Third Party’s Representatives, the Company shall furnish or otherwise make available to Parent such information or data that have not been previously furnished or otherwise made available to Parent, if any. After receipt of any Acquisition Proposal, request, or inquiry by the Company, it shall promptly (and in any event within twenty-four (24) hours or, if such time is not on a Business Day, then on the next Business Day) keep Parent informed in all material respects of the status and details (including the material terms of the Acquisition Proposal and material amendments or proposed material amendments) of any such Acquisition Proposal, request, or inquiry. Unless previously provided pursuant to section (C) above, the Company shall provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is expected to consider any Acquisition Proposal or any such inquiry or to consider providing information to any person or group in connection with an Acquisition Proposal or related inquiry.
(b) Neither the Company Board nor any committee thereof shall:
(i) withdraw, modify, amend, or qualify, in any manner adverse to Parent or Merger Sub, the approval or recommendation by the Company Board or any committee thereof of this Agreement, the Merger, or any other Transaction (the “Company Board Recommendation”), or make any public statement inconsistent with the Company Board Recommendation (any of the foregoing, a “Change in Recommendation”),
(ii) conductfail to recommend against acceptance of a publicly announced tender or exchange offer that constitutes an Acquisition Proposal within ten (10) Business Days after the earlier of the commencement of such offer and the Company’s receipt of a written request from Parent to recommend against acceptance of such offer, continueor
(iii) fail to reconfirm the Company Board Recommendation within ten (10) Business Days after the Company receives a written request from Parent to do so; unless, engage inin the case of clause (i), solicitclause (ii), or otherwise participate clause (iii) of this sentence, the Company Board has received a Superior Proposal not in violation of Section 6.2(a), or there is another event that was neither known to nor reasonably foreseeable by any discussions member of the Company Board, assuming consultation with the executive officers of the Company, as of or negotiations withprior to the date of this Agreement, disclose and did not result from or arise out of the announcement or pendency of the Merger, any non-public information relating action required to be taken (or to be refrained from being taken) pursuant to this Agreement, or the receipt of an Acquisition Proposal, the occurrence of which event has a material adverse effect on the Company Board’s ability to recommend the consummation of the Merger without breaching its fiduciary duties to the Company and its shareholders under applicable Law (such event, an “Intervening Event”), and the Company Board, prior to the Company General Meeting, determines in good faith (after consultation with outside legal counsel and, in respect of the Intervening Event, after consulting with a financial advisor of nationally recognized reputation) that in light of the receipt of such Superior Proposal or the occurrence of the Intervening Event, failure to do so (i.e., that failing to make a Change in Recommendation, that recommending against acceptance of a tender or exchange offer in the circumstances described in clause (ii) of this sentence, or that reconfirming the Company Board Recommendation in the circumstances described in clause (iii) of this sentence) would result in a breach by the Company Board of its fiduciary duties to the Company and its shareholders in accordance with applicable Law.
(c) Neither the Company Board nor any committee thereof shall approve or recommend any Acquisition Proposal by a Third Party or cause or permit the Company to take any action contemplated by Section 6.2(a)(iii). Notwithstanding the foregoing, prior to the commencement of the Company General Meeting (which commencement shall not be deemed to have occurred if such general meeting is postponed or adjourned in accordance with Section 6.5), the Company Board and the Company may, in response to a written Acquisition Proposal received by the Company and subject to compliance with the terms of Section 6.2(a) in connection with such Acquisition Proposal (or any related Acquisition Proposal), take any of the actions described in the first sentence of this Section 6.2(c) (each a “Specified Action”) if, and only if:
(i) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that failing to take such Specified Action would result in a breach by the Company Board of its fiduciary duties to the Company and its shareholders under applicable Law;
(ii) the Company Board shall have determined that such Acquisition Proposal constitutes a Superior Proposal (a “Designated Superior Proposal”);
(iii) the Company Board shall have provided written notice to Parent that it intends to take a Specified Action in response to such Designated Superior Proposal (a “Notice of Designated Superior Proposal”), which notice shall attach the most current form or draft of any written agreement providing for the transaction contemplated by such Designated Superior Proposal; and
(iv) Parent shall not have made, during the period commencing upon its receipt of such Notice of Designated Superior Proposal and ending five (5) Business Days thereafter (the “Matching Period”), an offer or proposal that the Company Board determines in good faith, after consultation with a financial advisor of nationally recognized reputation, is at least as favorable, from a financial point of view, to the shareholders of the Company as such Designated Superior Proposal. During the Matching Period, the Company and its Representatives shall meet with Parent and negotiate in good faith with respect to any revisions to this Agreement Parent may propose. The Company shall deliver to Parent a new Notice of Designated Superior Proposal with respect to (1) each material revision or material modification to a Designated Superior Proposal that was the subject of a previous Notice of Designated Superior Proposal where such revision or modification is adverse to the Company or any its shareholder, and (2) each other material revision or material modification to a Designated Superior Proposal that was the subject of its Subsidiaries toa previous Notice of Designated Superior Proposal where such revision or modification is made during a Matching Period, afford access and a new Matching Period of three (3) Business Days shall commence for purposes of this Section 6.2(c) under either of the circumstances described in clauses (1) and (2) above at the time Parent receives the new Notice of Designated Superior Proposal. Notwithstanding anything to the businesscontrary contained in this Agreement, properties, assets, personnel, books or records of the Company shall not be entitled to take a Specified Action (excluding any non-binding letter of intent or memorandum of understanding) unless (A) any of its Subsidiaries toand all such Matching Periods have expired, (B) this Agreement has been, or participate inconcurrently is, facilitate, encourageterminated by its terms pursuant to Section 8.1(i) and (C) the Company has paid, or knowingly assist any effort byconcurrently with the taking of a Specified Action, any third party that could reasonably be expected pays by wire transfer of immediately available funds, the Fee due to make, or has made, any Takeover Proposal or Parent pursuant to Section 8.3.
(iiid) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of The Company immediately shall on the foregoing. Each Stockholder shalldate hereof, and shall cause its respective representatives Representatives immediately to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any Person Third Parties (other than ParentParent and its Representatives) conducted theretofore that may be ongoing with respect to any Takeover Proposal Acquisition Proposal, and shall immediately request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished regarding the Company provided to any such Person party prior to the date of this Agreement.
(e) Nothing contained in this Section 6.2 shall prohibit the Company from taking and disclosing to its shareholder a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided that neither the Company nor the Company Board nor any committee thereof shall, except as permitted by Sections 6.2(b) and 6.2(c), withdraw or modify, or propose publicly to withdraw or modify, its representativesposition with respect to this Agreement, the Transactions or approve or recommend or enter into, or propose publicly to approve or recommend or enter into, any Acquisition Proposal, including a Superior Proposal.
(f) Unless such actions are taken in connection with a termination of this Agreement in accordance with Section 8.1(g) or 8.1(i), the Company shall not release any Third Party in connection with an Acquisition Proposal from, or waive any provision of, and shall take such steps to enforce as are requested by Parent, any confidentiality or standstill agreement entered into by the Company and such Third Party.
(g) Without limiting the generality of the foregoing, Parent, Merger Sub and the Company acknowledge and hereby agree that any material violation of the restrictions set forth in Section 6.2(a) by any Representative of the Company shall be deemed to be a breach of Section 6.2(a) by the Company. The Company shall notify its Representatives of the restrictions under Section 6.2(a) promptly (and in any event within one (1) Business Day) after the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Retalix LTD), Merger Agreement (Retalix LTD)
No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall notshall, and shall cause each of its Subsidiaries and its and their respective representatives directors and officers and shall use reasonable best efforts to cause its employees, Affiliates, or any investment banker, attorney, agent or representative (collectively, “Representatives”) to (i) immediately cease and terminate any solicitation, knowing encouragement, discussions, negotiations or other similar activities with any Persons other than Parent and its Representatives that may be ongoing with respect to, or that may reasonably be expected to lead to, an Acquisition Proposal and (ii) immediately revoke or withdraw access of any Person other than Parent and its Representatives to any data room (virtual or actual) containing any non-public information with respect to the Company or its Subsidiaries previously furnished with respect to any Acquisition Proposal and request such Person to promptly return or destroy, as elected by the Company, all confidential information concerning the Company and its Subsidiaries.
(b) The Company shall not and shall cause each of its Subsidiaries and its and their respective directors and officers and shall use reasonable best efforts to cause its Representatives not to, directly or indirectly, (i) solicit, initiate, propose knowingly facilitate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making or submission of any Takeover Proposal proposal or the making of any proposal offer that constitutes, or could would reasonably be expected to lead to, any Takeover an Acquisition Proposal; , (ii) conduct, continue, conduct or engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information or data relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate inassist, facilitate, encourage, knowingly facilitate or knowingly assist cooperate with any effort by, any third party Third Party with respect to or that could reasonably be expected is seeking to make, make or has made, any Takeover Proposal Acquisition Proposal, or (iii) enter intointo any agreement, approve or recommend including any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Acquisition Proposal (each, a “Company Acquisition Agreement”) (other than an Acceptable Confidentiality Agreement in circumstances contemplated in Section 6.2(c)).
(c) Notwithstanding anything to the contrary in Section 6.2(b), the Company either directly or through its Representatives may take the actions described in Section 6.2(b)(ii) with respect to a Third Party prior to but not after, the Acceptance Time, (i) if the Company receives after the date of this Agreement a bona fide, written Acquisition Proposal from such Third Party (and such Acquisition Proposal was not solicited, initiated, knowingly facilitated or knowingly encouraged (including by way of furnishing information) by the Company or any of its Subsidiaries, or any of its or their respective Representatives, and did not otherwise result from, or was not otherwise facilitated by, any breach of this Section 6.2) and (ii) if and to the extent that before taking any such actions, the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that (A) failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (B) such Acquisition Proposal constitutes, or is reasonably expected to lead to, a Superior Proposal; provided that (1) the Company shall not deliver any information or data to such Third Party or afford such Third Party any access prior to entering into an Acceptable Confidentiality Agreement as to such Third Party and (2) the Company shall, as promptly as practicable (and in any event within 24 hours), provide to Parent a copy of such executed Acceptable Confidentiality Agreement. The Company agrees that it shall substantially concurrently with delivery to the Third Party provide to Parent any information concerning the Company or its Subsidiaries that is provided to any Third Party in connection with any Acquisition Proposal which information was not previously provided to Parent.
(d) The Company shall, as promptly as practicable (and in any event within 24 hours after receipt), advise Parent orally and in writing of any request for information or any Acquisition Proposal received from any Person, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal, and the material terms and conditions of such request, Acquisition Proposal, inquiry, discussions or agree or commit negotiations, and the Company shall, as promptly as practicable (and in any event within 24 hours after receipt), provide to or agree to facilitate Parent copies of any written materials received by the Company in connection with any of the foregoing, and the identity of the Third Party making any such request, Acquisition Proposal or inquiry or with whom any discussions or negotiations are taking place. Each Stockholder shallThe Company shall keep Parent informed of any material developments, discussions or negotiations regarding any Acquisition Proposal on a reasonably current basis (and in any event within 24 hours) and shall notify Parent of the status of such Acquisition Proposal. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing any information to Parent in accordance with this Section 6.2. From and after the date hereof, the Company shall not grant any waiver, amendment or release under any standstill agreement without the prior written consent of Parent, and the Company will use its reasonable best efforts to enforce any such agreement at the request of or on behalf of Parent, including initiating and prosecuting litigation seeking appropriate equitable relief (where available) and, to the extent applicable, damages.
(e) Neither the Company Board nor any committee thereof will (i) fail to make, change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Company Board Recommendation, (ii) fail to recommend against acceptance of any tender offer or exchange offer for the shares of Company Common Stock (other than the Offer) within ten Business Days after commencement of any such offer, (iii) take any action or make any recommendation or public statement in connection with any such offer, (iv) adopt, approve or recommend, or publicly propose to approve or recommend an Acquisition Proposal, (v) make any public statement inconsistent with the Company Board Recommendation, (vi) resolve or agree to take any of the actions described in subclauses (i) through (v) above (actions described in subclauses (i) through (vi) being referred to as a “Company Adverse Recommendation Change”).
(f) Notwithstanding anything to the contrary in Section 6.2(e), prior to, but not after, the Acceptance Time, the Company Board may make a Company Adverse Recommendation Change if prior to taking such action, the Company Board has determined in good faith, after consultation with its financial advisor and outside legal counsel, that (A) in the case of an Acquisition Proposal such Acquisition Proposal constitutes a Superior Proposal and the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law or (B) in response to an Intervening Event and in the absence of an Acquisition Proposal, that failure to take such action in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law. The Company Board shall not make a Company Adverse Recommendation Change pursuant to Section 6.2(f)(A) unless prior to taking such action (i) the Company has given Parent at least three 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 Person making such Superior Proposal)) and has contemporaneously provided to Parent a copy of any proposed transaction agreements with the Person making such Superior Proposal, (ii) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period to enable Parent to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal, and (iii) the Company has complied in all material respects with its obligations under this Section 6.2. It is understood and agreed that, upon the expiration of such notice period, if the Company has not received from Parent a written proposal to amend the terms of this Agreement that the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, to be at least as favorable, from a financial point of view, to the Company’s Stockholders as the Superior Proposal, the Company shall have the right to terminate this Agreement pursuant to Section 10.1(c)(ii) at any time thereafter. It is also understood and agreed that any amendment to the financial terms or other material terms of a Superior Proposal after delivery of a notice in respect of such Superior Proposal shall require delivery of another Notice and a three Business Day notice period in respect of such Superior Proposal pursuant to Section 6.2(f) shall commence. The Company Board shall not make a Company Adverse Recommendation Change pursuant to Section 6.2(f)(B) unless prior to taking such action, (i) the Company has given Parent at least three Business Days prior written notice of its intention to take such action (which notice shall provide a detailed description of the Intervening Event), (ii) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period to enable Parent to revise the terms of this Agreement in such a manner that would obviate the need for taking such action as a result of such Intervening Event, (iii) following the end of such notice period, the Company Board shall have considered in good faith any changes to this Agreement proposed in writing by Parent, and shall cause have determined in good faith, after consultation with its respective representatives tofinancial advisor and outside legal counsel, immediately cease that notwithstanding such proposed changes, failure to take such actions in response to an Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law and (iv) the Company has complied in all material respects with its obligations under this Section 6.2. No Company Adverse Recommendation Change shall change the approval of this Agreement for purposes of Section 251 of the DGCL, and no Company Adverse Recommendation Change shall have the effect of causing any state (including Delaware) corporate takeover statute or other similar statute to be terminated applicable to the transactions contemplated by this Agreement (including the Offer, the Merger and the Tender and Voting Agreements).
(g) Nothing in this Agreement shall prohibit the Company Board from complying with its disclosure obligations under U.S. federal or state Law, including (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) and Rule 14d-9 under the Exchange Act, or (ii) making any “stop-look-and-listen” communication to the Company’s Stockholders pursuant to Rule 14d-9(f) under the Exchange Act; provided, however, that in no event shall any such requirement affect, eliminate or modify the obligations of the Company under, or the effect of any such actions under, this Section 6.2; and all existing discussions provided, further, that any such disclosure will be deemed to be a Company Adverse Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation in such statement or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement in connection with such Stockholder action.
(h) The Company shall promptly inform its Representatives who have been engaged or are otherwise providing assistance in connection with the prompt return or destruction transactions contemplated by this Agreement of all confidential information previously furnished the Company’s obligations under this Section 6.2. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of the restrictions set forth in this Section 6.2 by Representatives of the Company shall be deemed to such Person or its representativesbe a breach of this Section 6.2 by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Brigham Exploration Co), Merger Agreement (Statoil Asa)
No Solicitation. Except to the extent the Company would be as expressly permitted under by this Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith)5.02, from the date execution and delivery of this Agreement until the earlier of the Effective Time or, if earlier, or the termination of this Agreement in accordance with its terms, each Stockholder the Company shall not, and shall cause its respective representatives Subsidiaries not to, directly or indirectlyand shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives (collectively, “Representatives”) not to, (i) solicit, initiateseek, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of, any submission or announcement of any a proposal or offer that constitutes, or could would reasonably be expected to lead to, any Takeover Acquisition Proposal; , (ii) conduct, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations withregarding, disclose or furnish to any other Person any non-public information relating to in connection with or for the Company purpose of encouraging or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort byfacilitating, any third party that could reasonably be expected to makeAcquisition Proposal, or has made, any Takeover Proposal or (iii) enter intoapprove, approve endorse or recommend any understandingAcquisition Proposal, agreement in principle, (iv) enter into any letter of intent, term sheetmemorandum of understanding, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract similar agreement (other than an Acceptable Confidentiality Agreement), (v) grant any waiver, amendment or release under any standstill or confidentiality agreement, any Takeover Law (including Section 203 of the DGCL), or the Company Rights Plan, or otherwise fail to enforce any of the foregoing (provided that the Company shall not be prohibited from taking the actions set forth in this clause (v) if the Company Board determines in good faith, after consultation with its financial advisor(s) and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law), or (vi) resolve or agree to do any of the foregoing (an “Alternative Acquisition Agreement”) relating to any Takeover Acquisition Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder The Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and their respective representatives Representatives to, immediately cease and cause to be terminated any all discussions and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore that may be ongoing with respect to any Takeover Proposal Acquisition Proposal. Promptly following the execution and delivery of this Agreement, the Company shall (x) request from each Person that has executed a confidentiality agreement in connection with such Stockholder the prompt its consideration of an Acquisition Proposal to return or destruction destroy, in each case pursuant to the terms of such confidentiality agreement, all confidential information previously furnished to any such Person by or on behalf of the Company, its representativesSubsidiaries or any of their respective Representatives and (y) terminate the access of any Persons (other than Parent, its Subsidiaries and any of their respective Representatives) to any “data room” hosted by the Company, its Subsidiaries or any of their respective Representatives relating to any Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Community Health Systems Inc), Merger Agreement (Health Management Associates, Inc)
No Solicitation. Except to During the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), period from the date of this Agreement hereof and continuing until the Effective Time or, if earlier, earlier of the termination of this Agreement in accordance with pursuant to its terms, each Stockholder the date directors designated by Parent or Sub have been elected to and shall constitute a majority of the Company Board of Directors or the Effective Time, the Company shall not, and nor shall cause it authorize or permit any of its respective representatives not Subsidiaries to, directly nor shall it authorize or indirectlypermit any officer, (i) solicit, initiate, propose director or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutesemployee of, or could reasonably be expected to lead toany investment banker, any Takeover Proposal; attorney or other advisor or representative (iicollectively, “Representatives”) conductof, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business(i) directly or indirectly solicit, propertiesinitiate, assetsencourage, personnel, books knowingly facilitate or records of the Company or induce any of its Subsidiaries inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 5.02(f)), (ii) participate in, facilitate, encouragein any discussions or negotiations regarding, or knowingly assist furnish to any effort byPerson any nonpublic information with respect to, or take any third party other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to make, or has madelead to, any Takeover Proposal or Acquisition Proposal, (iii) enter intoengage in discussions with any Person with respect to any Acquisition Proposal, approve except as to the existence of the provisions of this Section 5.02, (iv) approve, endorse or recommend any understandingAcquisition Proposal (except to the extent specifically permitted pursuant to Section 5.02(d)), agreement in principle, or (v) enter into any letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement intent or other similar document or any Contract contemplating or otherwise relating to any Takeover Proposal, Acquisition Proposal or agree or commit to or agree to facilitate any of the foregoingtransaction contemplated thereby. Each Stockholder shall, The Company and shall cause its respective representatives to, Subsidiaries will immediately cease and be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesAcquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Globalive Communications Corp.), Merger Agreement (Yak Communications Inc)
No Solicitation. Except to (a) The Company acknowledges that the extent Company's Board of Directors has extensively solicited proposals for the sale of the Company would be permitted under Section 6.04 from financial and strategic buyers and obtained valuations of the Merger Agreement Company and relevant comparables from investment banks. Accordingly, and as a material inducement to take such actions at Parent to execute this Agreement, until the applicable time (earlier of the Effective Time and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termspursuant to the provisions of Section 8.1 hereof, each Stockholder shall notthe Company will not take, and shall cause its respective representatives will not topermit either Company Subsidiary to take, nor will the Company permit any of the Company's Representatives to (directly or indirectly, ) take any of the following actions with any Person other than Parent and its designees: (ia) solicit, initiate, propose initiate or knowingly take encourage any action to facilitate proposals or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutesoffers from, or could reasonably be expected to lead toparticipate in or conduct discussions with or engage in negotiations with, any Takeover Proposal; Person relating to any Competing Proposed Transaction with respect to any possible Business Combination with the Company, either of the Company Subsidiaries or any of their respective Subsidiaries or Affiliates (iiwhether 39 such Subsidiaries are in existence on the date hereof or are hereafter organized), (b) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose or provide any non-public information relating with respect to the Company or access to any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or either Company Subsidiary to any Person, other than Parent, relating to (or which the Company or either Company Subsidiary believes would be used for the purpose of formulating an offer or proposal with respect to), or otherwise knowingly assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Business Combination with the Company, either Company Subsidiary or any of its their respective Subsidiaries or Affiliates (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (c) agree to, or participate inenter into a Contract with any Person, facilitateother than Parent, encourageproviding for, or knowingly assist approve a Business Combination with the Company, either Company Subsidiary or any effort byof their respective Subsidiaries or Affiliates (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (d) make or authorize any third party that could reasonably be expected to makestatement, recommendation, solicitation or endorsement in support of any possible Business Combination with the Company, either Company Subsidiary or any of their respective Subsidiaries or Affiliates (whether such Subsidiaries are in existence on the date hereof or are hereafter organized) other than by Parent, or has made(e) authorize or permit any of the Company's Representatives to take any such action; provided, however, that nothing herein shall prohibit the Company's Board of Directors from, to the extent applicable, complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to a Competing Proposed Transaction. Notwithstanding the immediately preceding sentence, at any Takeover Proposal or time prior to the time at which this Agreement shall have been adopted by the Company's shareholders, if the Board of Directors of the Company shall have not violated the provisions of this Section 5.5(a) and shall have received an unsolicited written Competing Proposed Transaction then, to the extent that the Board of Directors of the Company (iiii) believes in good faith after advice from its financial advisor and after considering all terms and conditions of such written Competing Proposed Transaction, including the likelihood and timing of its consummation, that such Competing Proposed Transaction would result in a transaction more favorable to Company's shareholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Competing Proposed Transaction being referred to in this Agreement as a "Superior Proposal") and (ii) determines in good faith after receiving advice from outside legal counsel that it is necessary for the Board of Directors of the Company to take any of the following actions to comply with its fiduciary duties to shareholders under applicable law, Company and the Representatives may, subject to compliance with Section 5.5(c), furnish in connection therewith information to, and enter into, approve maintain or recommend continue discussions or negotiations with, any understandingperson that makes such unsolicited Superior Proposal after the date hereof, agreement and such actions shall not be considered a breach of this Section 5.5 or any other provisions of this Agreement, provided that in principle, letter each such event the Company notifies Parent of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any such determination by the Company's Board of Directors and provides Parent with a true and complete copy of the foregoingSuperior Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that the Company provides such non-public information pursuant to a non-disclosure agreement at least as restrictive on such third party as the Confidentiality Agreement is on Parent. Each Stockholder The Company shall, and shall cause its respective representatives each Company Subsidiary to, immediately cease and cause to be terminated any and all existing discussions such contacts or negotiations with any Person relating to any such transaction or Business Combination referred to in the second sentence of this Section 5.5(a).
(b) Neither the Company's Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval of this Agreement or the transactions contemplated hereby or the recommendation that the shareholders of the Company vote in favor of the adoption of this Agreement at the Shareholders Meeting or (ii) recommend, adopt or approve, or proposed publicly to recommend, adopt or approve, any Competing Proposed Transaction (such actions are hereinafter referred to as an "Adverse Recommendation Change"); provided, however, that nothing herein shall prohibit the Company's Board of Directors from, to the extent applicable, complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to a Competing Proposed Transaction. Notwithstanding the immediately preceding sentence, at any time prior to the time at which this Agreement shall have been adopted by Company's shareholders, if the Board of Directors of the Company shall have not violated the provisions of Section 5.5(a) and shall have received an unsolicited written Competing Proposed Transaction then, to the extent that the Board of Directors of the Company (i) believes in good faith after receiving advice from its financial advisor and after considering all terms and conditions of such written Competing Proposed Transaction, including the likelihood and timing of its consummation, that such Competing Proposed Transaction would result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement and (ii) determines in good faith after advice from outside legal counsel that it is necessary for the Board of Directors of the Company to take any of the following actions to comply with its fiduciary duties to shareholders under applicable Law, the Company's Board of Directors may make an Adverse Recommendation Change, and such actions shall not be considered a breach of this Section 5.5, provided that in each such event Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information pursuant to a non-disclosure agreement at least as restrictive on such third party as the Confidentiality Agreement is on Parent; and provided, further, that the Company's Board of Directors may not make an Adverse Recommendation Change in response to an unsolicited Superior Proposal 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 Company's Board of Directors intends to make such an Adverse Recommendation Change and specifying the terms and conditions of such Superior Proposal (it being understood and agreed by the parties that any amendment to the financial terms or any other than Parentmaterial term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a new three Business Day period). In determining whether to make an Adverse Recommendation Change in response to a Superior Proposal, the Company's Board of Directors shall take into account any changes to the terms of this Agreement proposed by Parent in response to a Notice of Adverse Recommendation or otherwise.
(c) conducted theretofore In addition to the obligations of the Company set forth in subsections (a) and (b) of this Section 5.5, if the Company receives prior to the Effective Time or the termination of this Agreement any offer or proposal (formal or informal, oral, written or otherwise) relating to, or any inquiry or contact from any Person with respect to any Takeover Proposal to, a Competing Proposed Transaction, the Company shall immediately notify Parent thereof and request from each Person that has executed a confidentiality agreement provide Parent with such Stockholder the prompt return or destruction details thereof, including the identity of all confidential information previously furnished to such the Person or its representativesPersons making such offer or proposal, and will keep Parent fully informed on a current basis of the status and details of any such offer or proposal and of any modifications to the terms thereof. The Company acknowledges that this Section 5.5 was a significant inducement for Parent to enter into this Agreement and the absence of such provisions would have resulted in either (i) a material reduction in the Merger Consideration or (ii) a failure to induce Parent to enter into this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wellcare Group Inc), Merger Agreement (Wellcare Management Group Inc)
No Solicitation. Except to (a) From and after the extent date hereof, except as specifically permitted in this Section 6.3, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and nor shall cause it authorize or permit any of its respective representatives not Subsidiaries or its or their Representatives to, directly or indirectly, : (i) solicit, initiate, propose knowingly facilitate or knowingly take encourage any action inquiries with respect to facilitate or encourage (including by way of furnishing non-public information) the submission or the announcement of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose regarding or furnish any non-public information relating to the Company or any of its Subsidiaries with respect to, afford or otherwise cooperate in any way with, any effort or attempt by any Person (other than Parent or its Affiliates) to make an inquiry in respect of or make any proposal or offer that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; (iii) except for confidentiality agreements entered into pursuant to the proviso set forth in clause (d)(iv)(A) of this Section 6.3, enter into a letter of intent, memorandum of understanding or other agreement with any Person, other than Parent or its Affiliates, relating to an Acquisition Proposal or (iv) waive any Standstill Agreement (as defined below) or voting restriction contained in the organizational or governing documents of the Company or any of its Subsidiaries. The Company shall ensure that its Representatives are aware of the provisions of this Section 6.3, and any violation of the restrictions contained in this Section 6.3 by the Company’s Board of Directors (including any committee thereof) or any director, officer or employee of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.3 by the Company.
(b) The Company shall, and shall cause each of its Subsidiaries and instruct its Representatives to, (i) cease and terminate any existing solicitations, discussions, negotiations or other activity with any Person (other than Parent or its Affiliates) being conducted with respect to any Acquisition Proposal on the date hereof, (ii) promptly request that each Person (other than Parent or its Affiliates) that has received confidential information in connection with a possible Acquisition Proposal return to the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries and (iii) enforce, and cause to be enforced, any confidentiality, standstill or other agreement to which the Company is a party (such agreement, a “Standstill Agreement”).
(c) From and after the date hereof, the Company shall notify Parent as soon as practicable (but in any event within twenty-four (24) hours) after receipt of (i) any Acquisition Proposal or indication that any Person is considering making an Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries or (iii) any request for access to the business, properties, assetsassets or the books and records of the Company or its Subsidiaries that the Company reasonably believes is reasonably likely to lead to an Acquisition Proposal. The Company shall provide Parent promptly with the identity of such Person, personnela description of such Acquisition Proposal, indication or request and, if applicable, a copy of such Acquisition Proposal, unless the Company is prohibited from such actions by the terms of any agreement between the Company and such Person. The Company shall keep Parent informed on a reasonably current basis of the status and the material details of any such Acquisition Proposal, indication or request and shall notify Parent as soon as practicable (but in any event within twenty-four (24) hours) of any material change in the terms of any such Acquisition Proposal, indication or request (including whether such Acquisition Proposal, indication or request has been withdrawn or rejected and of any material change to the terms thereof) and concurrently provide a copy of any document received from or on behalf of the Person making such Acquisition Proposal, indication or request relating to any such material development.
(d) Notwithstanding the foregoing provisions of this Section 6.3, prior to the Acceptance Date, after receiving an unsolicited, bona fide, third party proposal with respect to an Acquisition Proposal that is submitted to the Company by any Person (and not withdrawn), if none of the Company, any of its Subsidiaries nor any Representatives of the Company and any of its Subsidiaries have breached any of the provisions set forth in this Section 6.3 in any respect, nothing in this Agreement shall prevent the Company or its Board of Directors from (X) contacting such Person solely to clarify the terms and conditions thereof and (Y) engaging in discussions or negotiations with, or furnishing or disclosing any information relating to the Company or any of its Subsidiaries or giving access to the properties, assets or the books or and records of the Company or any of its Subsidiaries towith such Person if, in the case of clause (Y), (i) such Person is not a party to any Standstill Agreement with the Company or participate inany of its Subsidiaries, facilitate, encourage, or knowingly assist any effort by, any third party (ii) the Board of Directors determines in good faith (after consultation with the Company’s legal and financial advisors) that could such Acquisition Proposal would reasonably be expected to makeresult in a Superior Proposal and (after consultation with the Company’s legal advisor) that the failure to take such action would reasonably be expected to result in a breach of the directors’ fiduciary duties to the stockholders of the Company under applicable Laws, or has made, any Takeover Proposal or and (iii) the Company (A) enters into a confidentiality agreement at least as restrictive as the Confidentiality Agreement and provides a copy of such agreement to Parent and (B) concurrently discloses or makes available the same information to Parent as it makes available to such Person.
(e) The Board of Directors of the Company shall not (i) except as set forth in this Section 6.3, withdraw or modify or change, or publicly propose to withdraw or modify or change, in a manner adverse to Parent and Merger Subsidiary, its recommendation of the Offer, the Merger or this Agreement or (ii) except in accordance with this Section 6.3, approve, endorse or recommend, or publicly approve, endorse or recommend, any Acquisition Proposal or cause the Company to enter into, approve or recommend into any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement in principle or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore agreement with respect to any Takeover Acquisition Proposal and request from each Person that has executed (other than a confidentiality agreement permitted by Section 6.3(d)(iv)(A)). Notwithstanding the foregoing, if, at any time prior to the Acceptance Date, the Board of Directors of the Company determines in good faith (after consultation with the Company’s legal and financial advisors) that an Acquisition Proposal constitutes a Superior Proposal, or that any material event or circumstance relating to the business prospects of the Company not known by the Board of Directors of the Company as of the date hereof (or if known, the consequences of which are not known or reasonably foreseeable by the Board of Directors of the Company as of the date hereof) and not relating to any Acquisition Proposal (such Stockholder material event or circumstance, or consequences thereof, an “Intervening Event”) has occurred, the prompt return Board of Directors of the Company may withdraw or destruction modify its recommendation of all confidential information previously furnished the Offer, the Merger or the Agreement in response to the Superior Proposal or Intervening Event and terminate this Agreement in accordance with Section 8.1(c)(ii), but only if (A) the Company’s Board of Directors determines in good faith (after consultation with the Company’s legal advisors) that the failure to take such Person action would reasonably be expected to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Laws, (B) the Board of Directors of the Company provides Parent with at least four (4) Business Days’ advance written notice (provided however, that during the five (5) Business Days prior to the initial Expiration Date, the period for notice shall be reduced to two (2) Business Days) of its intention to make a change in recommendation and specifying the material events giving rise thereto, and (C) during such four (4) Business Day period (or, where applicable, a two (2) Business Day period, the “Notice Period”), the Company and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives to amend this Agreement so as to enable the Board of Directors of the Company to proceed with its recommendation of this Agreement (after taking into account any agreed modifications to the terms of this Agreement) and at the end of such Notice Period (it being understood and agreed that any amendment to the financial terms or any other material term of such Acquisition Proposal shall require a new Notice Period of at least three (3) Business Days (or, during the five (5) Business Days prior to the initial Expiration Date, one (1) Business Days), the Board of Directors of the Company maintains its representativesdetermination (after taking into account any agreed modifications to the terms of this Agreement).
(f) Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted to disclose to the stockholders of the Company a position with respect to an Acquisition Proposal required by Rule 14e-2(a), Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act; provided, however, that the Board of Directors of the Company shall first provide Parent the notice and opportunity to negotiate an amendment to this Agreement in the manner provided in Section 6.3(e)(B) and Section 6.3(e)(C) above.
Appears in 2 contracts
Sources: Merger Agreement (Wabash National Corp /De), Merger Agreement (Supreme Industries Inc)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from a) From the date of this Agreement until the earlier of the Effective Time or, if earlier, or the termination of this Agreement, the Company and the Company Subsidiaries shall not (and the Company will not permit any of its or any of the Company Subsidiaries' officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to) directly or indirectly (i) solicit, knowingly encourage, engage in discussions or negotiate with any Person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate any inquiry or effort of any Person (other than Parent) relating to any Alternative Acquisition, (ii) provide nonpublic information with respect to the Company to any Person, other 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 any possible Alternative Acquisition by any Person, other than by Parent. Notwithstanding the foregoing and anything else in this Agreement to the contrary, prior to the acceptance for payment of Company Common Stock pursuant to, and subject to the conditions of, the Offer, the Company Board may, if failure to do so could reasonably be expected to result in accordance breach of the fiduciary obligations of the Company Board under Delaware law, as determined in good faith by the Company Board, in response to a proposal for an Alternative Acquisition ("Alternative Acquisition Proposal") that the Company Board determines, in good faith after consultation with its termsoutside counsel and its financial advisor, each Stockholder shall notis or is reasonably likely to result in a Superior Company Proposal (as defined in Section 6.02(e)), subject to providing prior written notice of its decision to take such action to Parent, (A) furnish information with respect to the Company to the Person or group making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement with terms not materially more favorable to the Person making the Alternative Acquisition Proposal than those applicable to Parent under the Confidentiality Agreement (except that such confidentiality agreement need not contain any standstill provisions) and (B) participate in discussions and negotiations with such Person or group and its representatives. The Company shall, and shall cause its respective representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action cease immediately all discussions and negotiations that may have occurred prior to facilitate or encourage (including by way the date of furnishing non-public information) the submission of any Takeover Proposal or the making of this Agreement regarding any proposal that constitutes, or could may reasonably be expected to lead to, an Alternative Acquisition Proposal. For purposes of this Section 6.02 and Section 9.02(b)(ii), the term "Person" shall include any Takeover Proposal; (ii) conductgroup as defined in the Exchange Act. Without limiting the foregoing, continueit is understood that any violation of the restrictions set forth in this Section 6.02 by any director, engage in, solicit, officer or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records employee of the Company or the Company Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of its the Company or the Company Subsidiaries shall be deemed to be a breach of this Section by the Company.
(b) Neither the Company Board nor any committee thereof shall (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 or any such committee 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 participate inwhich is intended to or is reasonably likely to lead to, facilitateany Alternative Acquisition Proposal, encourage(iii) approve or recommend, or knowingly assist any effort bypropose to approve or recommend, any third party 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 and anything else in this Agreement to the contrary, if, during the period prior to the acceptance for payment of the Company Common Stock pursuant to the Offer, the Company Board receives a Superior Company Proposal and the Company Board determines in good faith, that failure to do so could reasonably be expected to result in a breach of its fiduciary obligations under Delaware law, the Company Board may, during such period, in response to 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 second 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 agreed and understood 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 and the Transactions (including for purposes of Section 203 of the DGCL)).
(c) The Company promptly, and in any event within two (2) Business Days, shall advise Parent orally and in writing of any Alternative Acquisition Proposal or any inquiry with respect to or that could reasonably be expected to makelead to any Alternative Acquisition Proposal, the identity of the Person or group making any such Alternative Acquisition Proposal or inquiry and the material terms of any such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably informed of the status, including any material change to the details, of any such Alternative Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Alternative Acquisition Proposal or sent or provided by the Company to any third party in connection with any Alternative Acquisition Proposal.
(d) Nothing contained in this Section 6.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act, from making required filings of document with the SEC or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Company Board, after consultation with independent counsel, failure so to disclose could be inconsistent with its obligations under Applicable Law; provided, however, that except as set forth in Section 6.02(b), in no event shall the Company Board or any committee thereof withdraw or modify, or has madepropose to withdraw or modify, any Takeover Proposal its position with respect to this Agreement, the Offer or (iii) enter intothe Merger or adopt, approve or recommend, or propose to adopt, approve or recommend any understandingAlternative Acquisition Proposal.
(e) For purposes of this Agreement, agreement in principle"Superior Company Proposal" means any written, letter bona fide proposal made by a third party to acquire all or substantially all the equity securities or assets of intentthe Company, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, transaction for the acquisition of all or agree substantially all the equity securities or commit to or agree to facilitate any assets of the foregoing. Each Stockholder shallCompany through a tender or exchange offer, a merger, a consolidation, a liquidation or dissolution, a recapitalization, a sale or a joint venture, (i) that is not subject to a financing contingency, (ii) that is on terms which the Company Board determines in its good faith judgment (after consultation with a financial adviser of nationally recognized reputation, with only customary qualifications, and shall cause its respective representatives toindependent legal counsel) to be superior for the holders of the Company Common Stock, immediately cease from a financial point of view, to the Offer and be terminated the Merger, taking into account all the terms and conditions of such proposal and this Agreement (including any proposal by Parent to amend the terms of this Agreement, the Offer and all existing discussions or negotiations with any Person (other than Parentthe Merger) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder taking into account the prompt return or destruction likelihood of consummation in light of all confidential information previously furnished to financial, regulatory, legal and other aspects of such Person proposal (including, without limitation, any antitrust or its representativescompetition law approvals or non-objections).
Appears in 2 contracts
Sources: Merger Agreement (I Stat Corporation /De/), Merger Agreement (I Stat Corporation /De/)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (From and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from after the date of this Agreement hereof until the Effective Time or, if earlier, the termination of this Agreement pursuant to Section 6 hereof, Stockholder, in accordance with his, her or its termscapacity as a stockholder of NCC, each Stockholder shall not, and nor shall cause Stockholder in such capacity authorize any stockholder, member, partner, officer, director, advisor or representative of Stockholder or any of his, her or its respective Affiliates to (and, to the extent applicable to Stockholder, such Stockholder shall use commercially reasonable efforts to not permit any of his, her or its representatives not or affiliates to, directly or indirectly), (ia) initiate, solicit, initiate, propose induce or knowingly encourage, or take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of of, any inquiry, offer or proposal that which constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; , (iib) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations withregarding any Acquisition Proposal, disclose or furnish, or otherwise afford access, to any non-public Person (other than CenterState) any information or data with respect to NCC or otherwise relating to the Company or any of its Subsidiaries toan Acquisition Proposal, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iiic) enter into, approve or recommend into any understandingagreement, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement memorandum of understanding or other Contract relating similar arrangement with respect to any Takeover an Acquisition Proposal, or agree or commit (d) solicit proxies with respect to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person an Acquisition Proposal (other than Parentthe Merger and the Merger Agreement) conducted theretofore or otherwise encourage or assist any party in taking or planning any action that would reasonably be expected to compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, or (e) initiate a stockholders’ vote or action by consent of NCC’s stockholders with respect to any Takeover Proposal and request from each Person an Acquisition Proposal, except in the cases of clauses (b) through (e), inclusive, of this Section 4 to the extent that has executed a confidentiality agreement with at such Stockholder time NCC is permitted to take such actions pursuant to Section 5.09 of the prompt return or destruction of all confidential information previously furnished to such Person or its representativesMerger Agreement.
Appears in 2 contracts
Sources: Merger Agreement (National Commerce Corp), Merger Agreement (CenterState Bank Corp)
No Solicitation. Except to the extent the The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder subsidiaries shall not, nor shall they permit any of their respective officers and shall cause directors (or authorize any affiliates of any such officers and directors), affiliates, or employees or any investment banker, attorney, accountant or other advisor or representative retained by (or otherwise working on behalf of) the Company or any of its respective representatives not tosubsidiaries (collectively, “Representatives”) to directly or indirectly, : (i) solicit, initiate, propose initiate or knowingly encourage, knowingly facilitate or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 4.4(h)(i)) with respect to the Company or any of its subsidiaries, (ii) participate or otherwise engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action (including granting any person a waiver or release under any standstill or similar agreement with respect to any class of equity security of the Company or any of its subsidiaries other than as contemplated by this Agreement) to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating Acquisition Proposal with respect to the Company or any of its Subsidiaries tosubsidiaries, afford access (iii) engage in discussions with any person with respect to the business, properties, assets, personnel, books or records of any Acquisition Proposal with respect to the Company or any of its Subsidiaries tosubsidiaries, or participate inexcept as to the existence of these provisions, facilitate(iv) approve, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve endorse or recommend any understandingAcquisition Proposal with respect to the Company or any of its subsidiaries (except to the extent specifically permitted pursuant to Section 4.4(d)), agreement in principle, or (v) enter into any letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement intent or other similar document or any Contract contemplating or otherwise relating to any Takeover Proposal, Acquisition Proposal or agree transaction contemplated thereby with respect to the Company or commit to or agree to facilitate any of the foregoingits subsidiaries. Each Stockholder shallThe Company and its subsidiaries will immediately cease, and shall will cause its respective representatives toRepresentatives to immediately cease, immediately cease and be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesAcquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Optical Communication Products Inc), Merger Agreement (Oplink Communications Inc)
No Solicitation. Except to the extent The Company agrees that neither the Company would be permitted under Section 6.04 nor any of its subsidiaries nor any of the Merger Agreement to take such actions at the applicable time (respective officers and subject to compliance with the notice, disclosure and other obligations that directors of the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with or its terms, each Stockholder shall notsubsidiaries shall, and the Company shall direct and use its best efforts to cause its respective employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its subsidiaries) not to, initiate, continue, solicit, or encourage, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutesor offer (including, without limitation, any proposal or offer to stockholders of the Company) with respect to a merger, consolidation or similar transaction involving, or could reasonably be expected to lead toany purchase of all or any significant portion of the assets or any equity securities of, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or, subject to the fiduciary duties of the Board of Directors of the Company under the CBCA, engage in any negotiations concerning, or provide any confidential information or data to, afford access or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or, enter into any agreement or understanding with any other person or entity with the businessintent to effect any Acquisition Proposal. The Company will take all necessary steps to inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 5.4. The Company will notify Parent immediately, propertiesorally and in writing (including the names of any party making and the principal terms of any such proposal), assetsif any such inquiries or proposals are received by, personnelany such information is requested from, books or records any such negotiations or discussions are sought to be initiated or continued with the Company. Immediately following the execution of this Agreement, the Company will request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected portion thereof (the "Confidentiality Agreements") to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously heretofore furnished to such Person person by or its representativeson behalf of the Company. Subject to the fiduciary duties of the Board of Directors of the Company under the CBCA, the Company will keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such request, proposal or inquiry.
Appears in 2 contracts
Sources: Merger Agreement (Matrix Capital Corp /Co/), Merger Agreement (Fidelity National Financial Inc /De/)
No Solicitation. Except to Each Stockholder hereby agrees that during the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date term of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder it shall not, and shall cause not permit any of its respective representatives not Subsidiaries, Affiliates or Representatives to, directly or indirectly, (i) initiate, solicit, initiate, propose encourage or knowingly take any action to facilitate or encourage (including by way of furnishing non-public providing information) the submission of any Takeover Proposal inquiries, proposals or the making of offers (whether firm or hypothetical) or any proposal other efforts or attempts that constitutes, constitute or could may reasonably be expected to lead to, any Takeover Acquisition Proposal; , (ii) conduct, continue, engage in, solicithave any discussions with or provide any confidential information or data to any person relating to an Acquisition Proposal, or otherwise participate engage in any discussions or negotiations withconcerning an Acquisition Proposal, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (iv) approve or recommend, or publicly propose to approve or recommend, or execute or enter into, approve or recommend any understandingletter of intent, agreement in principle, letter memorandum of intent, term sheet, acquisition agreementunderstanding, merger agreement, option asset or share purchase or share exchange agreement, joint venture agreement, partnership option agreement or other Contract relating similar agreement related to any Takeover Acquisition Proposal, (v) enter into any agreement or agree agreement in principle requiring, directly or commit indirectly, the Company to abandon, terminate or fail to consummate the transactions contemplated by the Merger Agreement or breach its obligations thereunder, (vi) make or participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Common Stock in connection with any vote or other action on any matter, other than to recommend that stockholders of the Company vote in favor of the adoption of the Merger Agreement and as otherwise expressly provided in this Agreement, or (vii) publicly propose or agree to facilitate do any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, hereby agrees immediately to cease and cause to be terminated any and all existing activities, discussions or negotiations conducted before the date of this Agreement with any Person (Persons other than Parent) conducted theretofore Acquiror with respect to any Takeover Proposal Acquisition Proposal, and request from each Person that has executed a confidentiality agreement with will take the necessary steps to inform its Affiliates and Representatives of the obligations undertaken by such Stockholder the prompt return pursuant to this Agreement, including this Section 4.3. Each Stockholder also agrees that any violation of this Section 4.3 by any of its Affiliates or destruction Representatives shall be deemed to be a violation by such Stockholder of all confidential information previously furnished to such Person or its representativesthis Section 4.3.
Appears in 2 contracts
Sources: Voting Agreement (optionsXpress Holdings, Inc.), Voting Agreement (Schwab Charles Corp)
No Solicitation. Except (i) The Company agrees that it will, and will cause its Representatives to, immediately cease and cause to be terminated all existing discussions, negotiations and communications with any Persons with respect to any offer or proposal for a merger, consolidation or other business combination involving the Company, any acquisition of a substantial amount of the capital stock (or securities convertible into, or exchangeable or exercisable for, capital stock) or assets of the Company, any recapitalization with respect to the extent Company or any other transaction similar to any of the foregoing with respect to the Company would be permitted under Section 6.04 of other than pursuant to the Merger transactions contemplated by this Agreement to take such actions at the applicable time (and subject to compliance with the noticea "Company Acquisition Proposal"). In addition, disclosure and other obligations that the Company would be required agrees that it will not authorize its employees to comply continue any existing discussions, negotiations or communications with any Persons with respect to any Company Acquisition Proposal.
(ii) Except as provided in connection therewithSection 6.2(c), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall Company will not, and shall cause will not authorize or permit its respective representatives not Representatives or authorize its employees to, directly or indirectlyindirectly (A) initiate, (i) solicit, initiate, propose knowingly encourage or knowingly take facilitate any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries with respect to, or the making of any offer or proposal that which constitutes, or could is reasonably be expected likely to lead to, any Takeover Company Acquisition Proposal; , (iiB) conduct, continue, engage in, solicitenter into or participate in negotiations or discussions with, or otherwise participate in provide any discussions information or negotiations withdata to, disclose any non-public information relating to the Company Person (other than Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 or any of its Subsidiaries totheir respective affiliates or Representatives) relating to any Company Acquisition Proposal, afford access except as to the businessexistence of these provisions, properties(C) make or authorize any statement, assetsrecommendation or solicitation in support of, personnelor approve, books any Company Acquisition Proposal, (D) enter into any letter of intent or records similar document or any contract, agreement or commitment contemplating or otherwise relating to any Company Acquisition Proposal or transaction contemplated thereby, or (E) grant any waiver or release under any standstill or similar agreement with respect to any equity securities of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or the Company Subsidiaries.
(iii) enter into, approve or recommend any understanding, agreement in principle, letter Any violation of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate the foregoing restrictions by any of the foregoing. Each Stockholder shallCompany's Representatives will be deemed to be a breach of this Agreement by the Company, whether or not such Representative is so authorized and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions whether or negotiations with any Person (other than Parent) conducted theretofore with respect not such Representative is purporting to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder act on behalf of the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Business Objects Sa), Merger Agreement (Crystal Decisions Inc)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from From the date of this Agreement hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termsAgreement, each Stockholder shall not, the Company will not and shall will cause its Subsidiaries and its and their respective representatives officers, directors, employees, representatives, agents, or affiliates (including, but not tolimited to any investment banker, attorney, or accountant retained by the Company or any Subsidiary), to not, directly or indirectly, (i) solicit, encourage, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any way in discussions or negotiations with, disclose or knowingly provide any non-public information relating to, any corporation, partnership, person, or other entity or group (other than Parent or any affiliate or agent of Parent) concerning any merger, sale or licensing of any significant portion of the assets, sale of shares of capital stock (including without limitation any proposal or offer to the Company's shareholders), or similar transactions involving the Company or any Subsidiary (an "Alternative Proposal"), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal. The Company will promptly communicate to Parent the terms of its Subsidiaries toany proposal or inquiry that it has received or may receive in respect of any such transaction or of any such information requested from it or of any such negotiations or discussions being sought to be initiated with the Company and may inform any third party who contacts the Company on an unsolicited basis concerning an Alternative Proposal that the Company is obligated hereunder to disclose such to Parent. Notwithstanding the foregoing, afford access to this section shall not prohibit the business, properties, assets, personnel, books or records Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, (a) the Board of Directors of the Company determines in good faith, after receipt of advice to such effect from outside legal counsel, that such action is so required for the board of Directors to comply with its Subsidiaries fiduciary duties to shareholders imposed by law, (b) prior to furnishing information to, or participate inentering into discussions and negotiations with, facilitatesuch person or entity, encouragethe Company promptly provides written notice to Parent to the effect that it is furnishing information to, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing entering into discussions or negotiations with any Person with, such person or entity, and (other than Parentc) conducted theretofore the Company keeps Parent informed of the status and all material terms and events with respect to any Takeover Proposal such Alternative Proposal; and request from each Person that has executed a confidentiality (ii) to the extent applicable, complying with Rules 14d-9 and 14e-2 promulgated under the 1934 Act, as amended, with regard to an Alternative Proposal. Nothing in this section shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (y) permit the Company to enter into any agreement with such Stockholder respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the prompt return Company shall not enter into any agreement with any person that provides for, or destruction in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of all confidential information previously furnished to such Person or its representativesthe Company under this Agreement while this Agreement remains in effect.
Appears in 2 contracts
Sources: Merger Agreement (Avecor Cardiovascular Inc), Merger Agreement (Medtronic Inc)
No Solicitation. Except (a) Notwithstanding any waivers given by Acquiror Parent to the extent Elan Companies prior to the Company would be permitted under Section 6.04 date hereof, from and after the date hereof and up to and including the Termination Date, without the prior written consent of the Merger Agreement Acquirors, no Elan Company will authorize or permit any representative or employee of any Elan Company to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not to, directly or indirectly, (i) directly or indirectly solicit, initiate, propose or knowingly take any action to facilitate initiate or encourage (including by way of furnishing non-public information) the submission of or take any Takeover Proposal other action to facilitate knowingly any inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead toto an Acquisition Proposal from any Person, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions discussion or negotiations with, disclose any non-public negotiation relating thereto or furnish information relating with respect to the Company or any Elan Companies in connection therewith, except as may be required in the exercise by it of its Subsidiaries tofiduciary duties under applicable law after receipt of an Acquisition Proposal which was unsolicited and did not otherwise result from a breach of this Section 8.18(a); provided, afford access however, that the Elan Companies shall furnish copies of any such information to the businessAcquirors contemporaneously with the furnishment to any such Person (which furnishment to such Person shall be subject to a customary confidentiality agreement), properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to accept or agree to facilitate accept any Acquisition Proposal. If any Elan Company receives any such inquiries, offers or proposals it shall promptly notify the Acquirors orally and in writing of such event. If any Elan Company receives an Acquisition Proposal, such Elan Company shall promptly notify the Acquirors in writing after the receipt thereof (including providing a copy thereof in writing), the terms and conditions of such Acquisition Proposal and the identity of the foregoingPerson making such Acquisition Proposal. Each Stockholder shallSuch Elan Company also shall promptly notify the Acquirors of any change to or modification of such Acquisition Proposal. As used herein, and shall cause its respective representatives to, immediately cease and be terminated "Acquisition Proposal" means any and all existing discussions proposal or negotiations with any Person offer (other than Parentpursuant to this Agreement) conducted theretofore with respect to acquire in any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder manner an ownership interest in any part of the prompt return Businesses or destruction of all confidential information previously furnished to such Person or its representativesthe Products.
Appears in 2 contracts
Sources: Asset Purchase Agreement (King Pharmaceuticals Inc), Asset Purchase Agreement (Elan Corp PLC)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (a) From and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from after the date of this Agreement until the earlier of the Effective Time or, if earlier, or the termination of this Agreement in accordance with its termspursuant to Section 8, each Stockholder VisiJet shall not, and shall cause its respective representatives not to, directly or indirectlyindirectly through any officer, director, employee, representative or agent of VisiJet or otherwise, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal proposals that constitutesconstitute, or could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, share exchange, business combination, sale of all or substantially all assets, sale of shares of capital stock or similar transactions involving VisiJet other than the transactions contemplated by this Agreement (any Takeover of the foregoing inquiries or proposals an "Acquisition Proposal"); (ii) conduct, continue, engage in, solicitor participate in negotiations or discussions concerning, or otherwise provide any non-public information to any person or entity relating to, any Acquisition Proposal; or (iii) agree to, enter into, accept, approve or recommend any Acquisition Proposal; provided, however, that VisiJet and its directors and officers will remain free to participate in any discussions or negotiations withregarding, disclose furnish any non-public information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing to the extent their fiduciary duties may require. VisiJet represents and warrants that it has the legal right to terminate any pending discussions or negotiations relating to the Company an Acquisition Proposal without payment of any fee or other penalty.
(b) VisiJet shall notify PNSO immediately (and no later than 24 hours) after receipt by VisiJet (or its advisors) of any Acquisition Proposal or any of its Subsidiaries to, afford request for nonpublic information in connection with an Acquisition Proposal or for access to the business, properties, assets, personnel, books or records of the Company VisiJet by any person or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party entity that could reasonably be expected to makeinforms VisiJet that it is considering making, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement an Acquisition Proposal. Such notice shall be made orally and in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any writing and shall indicate in reasonable detail the identity of the foregoing. Each Stockholder shallofferor and the terms and conditions of such proposal, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions inquiry or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativescontact.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ponte Nossa Acquisition Corp), Agreement and Plan of Merger (Ponte Nossa Acquisition Corp)
No Solicitation. Except to During the extent period (the Company would be permitted under Section 6.04 “No-Solicitation Period”) commencing as of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until and ending on the Effective Time or, if earlier, earlier to occur of (a) the termination of this Agreement in accordance with its termsand (b) the Closing, each Stockholder Conexant shall not, not and shall cause its Newport Fab LLC and Conexant’s and Newport Fab LLC’s respective representatives Representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage inenter into, solicit, initiate or otherwise participate in continue any discussions or negotiations with, disclose or encourage or respond to any non-public inquiries or proposals by, or participate in any negotiations with, or provide any information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate inotherwise cooperate in any other way with, facilitateany Person, encourageother than Carlyle and its Representatives, concerning any sale, lease, or knowingly assist license of all or any effort bysubstantial portion of the Wafer Fabrication Operations or the Contributed Assets, or (ii) provide any nonpublic information regarding the Contributed Assets or the Wafer Fabrication Operations to any Person in response to any proposal described in clause (i) above, provided however, that Conexant shall not be prohibited from providing nonpublic information regarding the Contributed Assets or the Wafer Fabrication Operations to any Person who is considering the acquisition of all or substantially all of the assets of Conexant or the acquisition of beneficial ownership of 50% or more of the capital stock of Conexant, provided that such third party enters into a non-disclosure agreement with Conexant which provides that could reasonably be expected the Company is a third party beneficiary of those provisions contained in such non-disclosure agreement that relate to makethe non-disclosure of nonpublic information related to the Wafer Fabrication Operations or the Contributed Assets. Conexant shall promptly notify Carlyle of the material terms of any inquiry, proposal, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of offer received by the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with Conexant Group Companies during the No-Solicitation Period from any Person (other than Parentthe Company or Carlyle) conducted theretofore with respect solely related to the acquisition, lease, license or transfer of all or a material portion of the Contributed Assets or the Wafer Fabrication Operations including, without limitation, the identity of the prospective purchaser or soliciting party, except to the extent that any such notification would violate any existing agreement of Conexant. Notwithstanding the foregoing, Conexant shall have no obligation to disclose to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return existence of any inquiry, proposal or destruction offer received by Conexant relating to the acquisition of all confidential information previously furnished to such Person or its representativessubstantially all of the assets of Conexant or the acquisition of beneficial ownership of 50% or more of the capital stock of Conexant.
Appears in 2 contracts
Sources: Contribution Agreement (Jazz Semiconductor Inc), Contribution Agreement (Jazz Semiconductor Inc)
No Solicitation. Except (a) The Company shall, and shall cause the Company Subsidiaries and the Company’s and the Company Subsidiaries’ respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives (collectively, “Representatives”) to, immediately cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Takeover Proposal (as hereinafter defined), promptly request and use commercially reasonable efforts to obtain the return from all such Persons or cause the destruction of all copies of confidential information previously provided to such parties by the Company, the Company Subsidiaries or Representatives to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take any confidentiality agreement with such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from Person so provides. From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder the Company shall not, and nor shall cause its respective representatives not it permit any of the Company Subsidiaries to, nor shall it authorize or permit any Representative to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of, any Takeover Proposal, (ii) approve or recommend any Takeover Proposal, enter into any agreement, agreement-in-principle or letter of intent with respect to or accept any Takeover Proposal (or resolve to or publicly propose to do any of the foregoing), or (iii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or knowingly take any action to facilitate any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any Takeover Proposal; provided, however, that (iiA) conductthe Company may refer any third party to this Section 6.8 and (B) if in response to an unsolicited, continuebona fide written Takeover Proposal made after the date hereof in circumstances not involving a breach of this Agreement, engage inthe Company Board reasonably determines in good faith (after receiving the advice of its financial advisor of nationally recognized reputation) that such Takeover Proposal constitutes or is reasonably likely to lead to, solicita Superior Proposal and with respect to which the Company Board determines in good faith, after consulting with and receiving the advice of outside counsel, that the taking of such action is necessary in order for such Board to comply with its fiduciary duties to the Company’s stockholders under Delaware law, then the Company may at any time prior to the acceptance for payment of Shares pursuant to the Offer (but in no event after such time), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Takeover Proposal and its Representatives, but only pursuant to a confidentiality agreement in customary form that is no less favorable to the Company than the Confidentiality Agreement (except that such confidentiality agreement shall contain additional provisions that expressly permit the Company to comply with the provisions of this Section 6.8), provided that (1) such confidentiality agreement may not include any provision calling for an exclusive right to negotiate with the Company, (2) the Company provides Parent with not less than 24 hours notice of its intention to enter into such confidentiality agreement and (3) the Company advises Parent of all such non-public information delivered to such Person concurrently with its delivery to such Person and concurrently with its delivery to such Person the Company delivers to Parent all such information not previously provided to Parent, (y) conduct discussions or negotiations with such Person regarding such Takeover Proposal, and (z) to the extent permitted pursuant to and in compliance with Section 9.1(f), enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal. The Company shall ensure that its Representatives are aware of the provisions of this Section 6.8(a). Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by the Company Subsidiaries or their Representatives shall be deemed to be a breach of this Section 6.8 by the Company. The Company shall provide Parent with a correct and complete copy of any confidentiality agreement entered into pursuant to this paragraph within 24 hours of the execution thereof.
(b) In addition to the other obligations of the Company set forth in this Section 6.8, the Company shall promptly advise Parent, orally and in writing, and in no event later than 24 hours after receipt, if any proposal, offer, inquiry or other contact is received by, any information is requested from, or otherwise participate in any discussions or negotiations are sought to be initiated or continued with, disclose the Company in respect of any non-public information 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 shall include with such notice copies of any written materials received from or on behalf of such Person relating to such proposal, offer, inquiry or request), and thereafter shall promptly keep Parent reasonably informed of all material developments affecting the status and terms of any such proposals, offers, inquiries or requests (and the Company shall provide Parent with copies of any additional written materials received that relate to such proposals, offers, inquiries or requests) and of the status of any of its Subsidiaries tosuch discussions or negotiations.
(c) Except as expressly permitted by this Section 6.8(c), afford access neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the business, properties, assets, personnel, books or records recommendation by the Company Board that stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant thereto and adopt this Agreement (the “Company Recommendation”) or any the approval or declaration of its Subsidiaries toadvisability by the Company Board of this Agreement and the Transactions (including the Offer and the Merger) or (ii) approve or recommend, or participate in, facilitate, encourage, propose publicly to approve or knowingly assist any effort by, any third party that could reasonably be expected to make, or has maderecommend, any Takeover Proposal (any action described in clause (i) or (iiiii) being referred to as a “Company Adverse Recommendation Change”). Notwithstanding the foregoing, the Company Board may, prior to the acceptance for payment of Shares pursuant to the Offer, (x) withdraw or modify the Company Recommendation, (y) recommend a Takeover Proposal that constitutes a Superior Proposal, or (z) to the extent permitted pursuant to and in compliance with Section 9.1(f), enter intointo a binding written agreement concerning a transaction that constitutes a Superior Proposal, approve if the Company Board determines in good faith, after consulting with and receiving advice from outside counsel, that such withdrawal, modification, recommendation or recommend agreement is necessary in order for the Company Board to comply with its fiduciary duties to the Company’s stockholders under Delaware law; provided, however, that no Company Adverse Recommendation Change may be made in the absence of a Superior Proposal unless such change is based upon an event that is unknown to the Company Board as of the date hereof but becomes known prior to the acceptance for payment of Shares pursuant to the Offer.
(d) Nothing in this Section 6.8 shall prohibit 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 promulgated under the Exchange Act or (ii) from making any understandingdisclosure to the holders of Company Common Stock, agreement if in principleeach case such Board determines in good faith, letter after consultation with outside counsel, that the taking of intentsuch position or the making of such disclosure is necessary in order for the Company Board to comply with the Company Board’s fiduciary duties to its stockholders under Delaware law; provided, term sheethowever, acquisition agreementthat in no event shall the Company, merger agreement, option agreement, joint venture agreement, partnership agreement the Company Board or other Contract relating to any Takeover Proposalcommittee thereof take, or agree or commit resolve to or agree to facilitate take, any of the foregoingaction prohibited by Section 6.8(c). Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person Any disclosure (other than Parenta “stop, look and listen” or similar communication of the type contemplated by Rule 14D-9(f) conducted theretofore with respect under the Exchange Act) made pursuant to any Takeover Proposal and request from each Person that has executed this subsection (d) shall be deemed to be a confidentiality agreement with such Stockholder Company Adverse Recommendation Change unless the prompt return or destruction Company Board expressly reaffirms its recommendation of all confidential information previously furnished the Offer to such Person or its representativesstockholders.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Pfizer Inc), Merger Agreement (Encysive Pharmaceuticals Inc)
No Solicitation. Except (a) Subject to the extent the Company would be permitted under remainder of this Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith)5.02, from the date of this Agreement until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with pursuant to Article VII, the Company shall not and shall not cause or permit its terms, each Stockholder shall notSubsidiaries to, and shall cause not authorize or permit its respective representatives not to, directly Representatives or indirectly, its Subsidiaries’ Representatives to (i) solicit, initiate, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Acquisition Proposal or the making of any proposal that constitutes(as defined below), or could reasonably be expected to lead to, any Takeover Proposal; (ii) conductenter into any letter of intent, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any memorandum of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheetmerger agreement, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating similar agreement with respect to any Takeover Acquisition Proposal, (iii) solicit, knowingly encourage, participate, engage in or agree assist in any manner any discussions or commit negotiations regarding, or furnish to any person (other than Parent or agree its Representatives) any information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (iv) take any action (A) other than as contemplated by this Agreement in connection with the Merger, to render the Company Rights issued pursuant to the terms of the foregoing. Each Company Rights Agreement inapplicable to any Acquisition Proposal or the transactions contemplated thereby, to exempt or exclude any person (other than Parent or Merger Sub) from the definition of an Acquiring Person (as defined in the Company Rights Agreement) under the terms of the Company Rights Agreement or allow the Company Rights to expire prior to their expiration date (all such actions in this subclause (A) are collectively referred to as “Company Rights Agreement Modifications”) or (B) exempt any person (other than Parent or Merger Sub) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provision) or otherwise cause or permit such restrictions not to apply (all such actions in this subclause (B) are collectively referred to as “DGCL 203 Modifications”).
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Stockholder shallMerger Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement and not the result of a breach of this Section 5.02, if the Company Board determines in good faith after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal (as defined in subsection (h) below), the Company may (x) enter into a customary confidentiality agreement with the person making such Acquisition Proposal containing terms and provisions (i) substantially similar to the terms and provisions of, (ii) no less restrictive on the person making such Acquisition Proposal and (iii) no less favorable to the Company than, the Confidentiality Agreement (it being understood that such confidentiality agreement will not include any provision calling for an exclusive right to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Section 5.02), (y) furnish, and shall cause authorize and permit its respective representatives toRepresentatives to furnish, immediately cease information with respect to the Company and be terminated any its Subsidiaries to the person making such Acquisition Proposal and all existing its Representatives pursuant to such customary confidentiality agreement and (z) participate in discussions or negotiations with such person and its Representatives regarding any Person such Acquisition Proposal.
(c) The Company shall notify Parent (“Notice of Proposal”) as promptly as practicable (and in any event within 24 hours) after receipt by the Company or any of its Subsidiaries, or any of their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations in connection with any Acquisition Proposal, specifying the material terms and conditions thereof and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of the Original Agreement, the identity of the party making such inquiry, proposal, offer or request (and, in the case of an entity, the ultimate beneficial owner thereof, if known to the Company). The Company shall keep Parent reasonably informed, on a prompt basis, of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals, offers or requests, and shall promptly (and in any event within 24 hours) provide to Parent a copy of all written (and a summary in reasonable detail of all oral) inquiries, proposals or offers, requests for information or requests for discussions or negotiations from any other person and all written due diligence materials or other information provided by or on behalf of the Company or any Subsidiary of the Company in connection therewith that was not previously provided to Parent.
(d) The Company Board shall not (i) withdraw, amend or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub, or publicly propose or announce an intent to, or resolve to, do any of the foregoing (any such action, an “Adverse Recommendation Change”), (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, or (iii) cause or permit the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to, or may reasonably be expected to lead to, any Acquisition Proposal, other than any confidentiality agreement permitted by Section 5.02(b).
(e) Notwithstanding the foregoing, if the Company has otherwise complied with its obligations under this Section 5.02, then at any time prior to the time when the Company Stockholder Merger Approval has been obtained:
(i) upon having received an unsolicited bona fide written Acquisition Proposal that is not subsequently withdrawn and the Company Board concluding in good faith (A) after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with its outside legal counsel that taking such action is necessary to comply with its fiduciary duties to the Company Stockholders under applicable Law, the Company Board may make an Adverse Recommendation Change or publicly propose to make an Adverse Recommendation Change, or approve or recommend the Superior Proposal, or terminate this Agreement pursuant to Section 7.01(c), or make Company Rights Agreement Modifications or DGCL 203 Modifications with respect to the acquisition of Company Common Stock pursuant to such Superior Proposal; provided, however, that the Company Board shall not make an Adverse Recommendation Change, approve or recommend the Superior Proposal or terminate this Agreement pursuant to Section 7.01(c) or make such Company Rights Agreement Modifications or DGCL 203 Modifications, unless the Company has first (x) provided notice (“Notice of Superior Proposal”) to Parent that an Acquisition Proposal described in a Notice of Proposal previously furnished to Parent constitutes a Superior Proposal, (y) given Parent three (3) Business Days following Parent’s receipt of the Notice of Superior Proposal to propose revisions to the terms of this Agreement (or make another proposal) and (z) shall have negotiated during such three Business Day period in good faith with Parent with respect to such proposed revisions or other proposal, if any, and at the end of such period the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, that such Acquisition Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by Parent (it being understood and agreed that any amendment to any material term of such Acquisition Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period under clause (y).
(ii) In circumstances other than as provided in Section 5.02(e)(i) above, the Company Board may, if it determines in good faith, after consulting with outside legal counsel, that taking such action is necessary to comply with its fiduciary obligations under applicable Law, make an Adverse Recommendation Change, or publicly propose to make an Adverse Recommendation Change, but only after the Company has provided Parent with forty-eight (48) hours prior written notice that the Company Board is prepared to make the determination set forth in this clause (ii).
(f) Nothing contained in this Section 5.02 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 Company Board, after consultation with outside legal counsel, failure so to disclose would be inconsistent with its fiduciary obligations under applicable Law, it being understood, however, that this Section 5.02(f) shall not be deemed to permit the Company Board to make an Adverse Recommendation Change or take any of the actions referred to in clause (iv) of Section 5.02(a) except, in each case to the extent permitted by Section 5.02(e).
(g) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person or group (as such term is defined under Section 13(d) of the Exchange Act) (other than ParentParent or Merger Sub) conducted theretofore with respect relating to (i) any Takeover Proposal direct or indirect acquisition or purchase of more than 15% of the outstanding shares of Company Common Stock; (ii) any tender offer or exchange offer that, if consummated, would result in any person or group beneficially owning more than 15% of the outstanding shares of Company Common Stock; (iii) the direct or indirect acquisition of assets of the Company that generate or constitute 15% or more of the net revenues, net income or the assets (based on the fair market value thereof) of the Company; (iv) a merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution or other similar transaction involving the Company or any Significant Subsidiary (as defined in Rule 1-02(w) of Regulation S-X) of the Company; and request from each Person that has executed a confidentiality agreement with such Stockholder (v) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the prompt return Company or destruction any Subsidiary of the Company (including for this purpose the outstanding equity securities of the Subsidiaries of the Company) for consideration equal to 15% or more of the aggregate fair market value of all confidential information previously furnished of the shares of Company Common Stock outstanding on the date prior to such Person or its representativesthe date hereof, but in each case other than the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
No Solicitation. Except to During the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the noticeExclusivity Period, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder Sellers shall not, and shall cause its respective not authorize or permit any of their Affiliates or any of their representatives not to, directly or indirectly, (ia) encourage, solicit, initiate, propose or knowingly take any action to facilitate or encourage continue inquiries regarding an Acquisition Proposal, (including b) enter into discussions or negotiations with, or provide any information to, any Person (other than as permitted under this Agreement and other than to Buyer or any of its Affiliates and/or its or their respective representatives) concerning a possible Acquisition Proposal or (c) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Sellers shall immediately cease and cause to be terminated, and shall cause its Affiliates and all of its and their representatives to immediately cease and cause to be terminated, all existing discussions and negotiations with any Persons (other than Buyer and/or its Affiliates) with respect to, or that could lead to, an Acquisition Proposal. For purposes of this Agreement, (i) “Exclusivity Period” means the period from and after the Execution Date until the earlier to occur of the Closing and the termination of this Agreement pursuant to Article XI and (ii) an “Acquisition Proposal” means any inquiry, proposal or offer from any Person (other than Buyer and/or any of its Affiliates) relating to the direct or indirect disposition, whether by way sale, merger or otherwise (other than Buyer or any of furnishing non-public informationits Affiliates) of all or any portion of the submission Assets. Sellers shall promptly, and in any case within three (3) Business Days after receipt thereof, advise Buyer orally and in writing of any Takeover Proposal or the making of Acquisition Proposal, any proposal that constitutesrequest for information relating to an Acquisition Proposal, or any inquiry or discussion that could reasonably be expected to lead toto an Acquisition Proposal, any Takeover the material terms of such Acquisition Proposal; (ii) conduct, continuerequest or discussion, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records and identity of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesPersons involved.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Linn Energy, LLC), Purchase and Sale Agreement (Midstates Petroleum Company, Inc.)
No Solicitation. Except to the extent The Company agrees that, except as expressly permitted by this Section 6.03, neither the Company would be permitted under Section 6.04 nor any of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the noticeits Subsidiaries shall, disclosure and other obligations that nor shall the Company would be required to comply with in connection therewith)or any of its Subsidiaries authorize or permit any of its or their respective officers, from the date of this Agreement until the Effective Time ordirectors, if earlieremployees, the termination of this Agreement in accordance with its termsinvestment bankers, each Stockholder shall notattorneys, and shall cause its respective representatives not accountants, consultants or other agents or advisors (“Representatives”) to, directly or indirectly, :
(i) solicit, initiate, propose solicit or knowingly take any action to facilitate or encourage (encourage, including by way of furnishing non-public information) the submission of , any Takeover Proposal inquiries or the making of any proposal or offer (including any proposal or offer to holders of Company Stock) that constitutes, constitutes or that could reasonably be expected to lead to, any Takeover to an Acquisition Proposal; ;
(ii) conduct, continueenter into, engage in, solicit, continue or otherwise participate in any discussions or negotiations withregarding, disclose or provide any non-public information or data to any Person relating to the Company or any of its Subsidiaries to, afford access any Acquisition Proposal, except solely to the business, properties, assets, personnel, books or records notify such Person of the Company or any existence of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or this Section 6.03;
(iii) agree to, approve, endorse, recommend or consummate any Acquisition Proposal or enter into, approve or recommend into any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement contract or other Contract agreement (other than an Acceptable Confidentiality Agreement entered into in compliance with this Section 6.03) or commitment contemplating or otherwise relating to any Acquisition Proposal;
(iv) grant any waiver, amendment or release under any standstill or similar agreement or Takeover Proposal, Statutes (and the Company shall promptly take all action necessary to terminate or agree cause to be terminated any such waiver previously granted with respect to any provision of any such standstill or commit similar agreement or Takeover Statute to or agree the extent permitted thereby to do so); or
(v) otherwise knowingly facilitate any of the foregoingeffort or attempt by any Person to make an Acquisition Proposal. Each Stockholder The Company shall, and shall cause its respective representatives Subsidiaries and its and its Subsidiaries’ officers, directors and other Representatives to, cease immediately cease and be terminated any and all existing discussions or negotiations negotiations, if any, with any Person (other than ParentParent and Merger Subsidiary and their respective Affiliates and Representatives) conducted theretofore prior to the execution of this Agreement with respect to any Takeover Acquisition Proposal and the Company shall promptly request from each Person (other than Parent) that has theretofore executed a confidentiality agreement in connection with such Stockholder Person’s consideration of an Acquisition Proposal to return (or if permitted by the prompt return or destruction of applicable agreement, destroy) all confidential information previously furnished required to be returned (or, if applicable, destroyed) by such Person or its representativesunder the terms of the applicable agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Ingram Micro Inc)
No Solicitation. Except to the extent the The Company would be permitted under Section 6.04 agrees that neither it nor any of its Subsidiaries nor any of the Merger Agreement officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to take such actions at the applicable time 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 (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date shall not authorize any of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not them to, ) directly or indirectly, : (i) solicit, initiate, propose encourage, knowingly facilitate or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action (including granting any Person a waiver or release under any standstill or similar agreement with respect to any class of equity security of the Company or any of its Subsidiaries or amending, waiving or terminating the Rights Plan, other than as contemplated by this Agreement, or redeeming any Company Rights) to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could reasonably be expected to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter intoengage in discussions with any Person with respect to any Acquisition Proposal, approve except to notify such Person as to the existence of these provisions (except to the extent specifically permitted pursuant to Section 6.3(c)), (iv) approve, endorse or recommend any understandingAcquisition Proposal (except to the extent specifically permitted pursuant to Section 6.3(d)), or (v) enter into any letter of intent or similar document or any contract, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract commitment contemplating or otherwise relating to any Takeover Proposal, Acquisition Proposal or agree or commit transaction contemplated thereby (other than a confidentiality agreement specifically permitted pursuant to or agree to facilitate any of the foregoingSection 6.3(c)). Each Stockholder shall, The Company and shall cause its respective representatives to, Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Acquisition Proposal and request from each shall use reasonable best efforts to cause any such Person that has executed a confidentiality agreement (including its employees, agents and representatives) in possession of confidential information about the Company in connection with such Stockholder the prompt an Acquisition Proposal to return or destruction of destroy all confidential such information previously furnished to such Person and all materials, documents, analyses and other work product containing or its representativesderived from that information.
Appears in 2 contracts
Sources: Merger Agreement (Quantum Corp /De/), Merger Agreement (Advanced Digital Information Corp)
No Solicitation. Except Hereafter until the Expiration Date, to the extent that the Company would be permitted is prohibited from taking such action under Section 6.04 5.03 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and nor shall cause such Stockholder authorize or permit any general partner, officer, director, advisor or representative of such Stockholder (collectively, “Representatives”) or any Controlled Affiliates of such Stockholder to, in its respective representatives not toor their capacity as a stockholder, directly or indirectly, (i) solicit, initiate, propose knowingly encourage or knowingly take any other action to knowingly facilitate any inquiry, discussion, offer or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal request that constitutes, or could would reasonably be expected to lead to, any a Company Takeover Proposal; , (ii) conductenter into any agreement, letter of intent, memorandum of understanding or other similar instrument with respect to any Company Takeover Proposal, (iii) enter into, continue, conduct, engage in, solicit, or otherwise participate in any discussions or negotiations withregarding, disclose or furnish to any Person any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries with respect to, or participate infor the purpose of encouraging or facilitating, facilitateany Company Takeover Proposal, encourage, (iv) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to a Company Takeover Proposal (other than the Merger Agreement or a Superior Company Proposal) or otherwise knowingly encourage or assist any effort by, party in taking or planning any third party action that could would reasonably be expected to makecompete with, restrain or has madeotherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, any Takeover Proposal (v) initiate a stockholders’ vote or (iii) enter into, approve or recommend any understanding, agreement in principle, letter action by consent of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating the Company’s stockholders with respect to any a Company Takeover Proposal, or agree or commit to or agree to facilitate any (vi) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the foregoingExchange Act) with respect to any voting securities of the Company that takes any action in support of a Company Takeover Proposal (other than the Merger Agreement or a Superior Company Proposal). Each The Stockholder shall, and shall cause instruct its respective representatives Representatives and Affiliates that the Stockholder can control to, immediately cease and cause to be terminated any and all existing discussions or negotiations and negotiations, if any, with any Person (other than Parent) conducted theretofore heretofore with respect to any Company Takeover Proposal Proposal. Nothing in this Section 4 or otherwise in this Agreement shall in any way impede or prevent any Representative of the Stockholder that is a member of the Board of Directors of the Company from exercising and request from each Person that has executed performing his duties as a confidentiality agreement director of the Company in accordance with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesapplicable law.
Appears in 2 contracts
Sources: Voting Agreement (Independence Realty Trust, Inc), Voting Agreement (Independence Realty Trust, Inc)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (From and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from after the date of this Agreement hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termsExpiration Date, each Stockholder shall not, and shall cause its respective representatives not to, directly or indirectly, : (ia) solicit, initiate, propose initiate or knowingly encourage, induce or facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry regarding the Company or take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead toto an Acquisition Proposal or Acquisition Inquiry regarding the Company, any Takeover Proposal; (iib) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose furnish any non-public information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (c) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry regarding the Company, (d) approve, endorse or recommend any Acquisition Proposal (subject to Section 6.3 of the Merger Agreement) (e) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction regarding the Company or any of its Subsidiaries to, afford access (subject to the business, properties, assets, personnel, books or records Section 5.4 of the Company or Merger Agreement), (f) take any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party action that could reasonably be expected to make, or has made, any Takeover lead to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (iiig) enter intoinitiate a Stockholders’ vote or action by consent of the Company’s Stockholders with respect to an Acquisition Proposal regarding the Company, approve or recommend any understanding(h) except by reason of this Agreement, agreement become a member of a “group” (as such term is defined in principle, letter Section 13(d) of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating the Exchange Act) with respect to any Takeover Proposal, voting securities of the Company that takes any action in support of an Acquisition Proposal regarding the Company or agree or commit to (i) propose or agree to facilitate do any of the foregoing. Each In the event that such Stockholder shallis a corporation, and partnership, trust or other Entity, it shall cause not permit any of its respective representatives Subsidiaries or Affiliates to, immediately cease and be terminated nor shall it authorize any and all existing discussions officer, director or negotiations with representative of such Stockholder, or any Person (other than Parent) conducted theretofore with respect to of its Subsidiaries or Affiliates to, undertake any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder of the prompt return or destruction of all confidential information previously furnished to such Person or its representativesactions contemplated by this Section 7.
Appears in 2 contracts
Sources: Merger Agreement (Vascular Biogenics Ltd.), Support Agreement (Vascular Biogenics Ltd.)
No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 agrees that neither it, nor any Subsidiary of the Merger Agreement to take such actions at the applicable time (Company, nor any of its or its Subsidiaries officers and subject to compliance with the noticedirectors, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall notshall, and that it shall instruct and use its reasonable best efforts to cause its and their other respective representatives Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, propose or encourage, knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of induce any Takeover Proposal inquiry with respect to or the making of any proposal that constitutes, or could reasonably be expected to lead to, or the making, submission or announcement of, any Takeover Company Alternative Proposal; , (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations withregarding, disclose or furnish to any non-public person any nonpublic information relating to the Company or any of its Subsidiaries with respect to, afford access to the business, properties, assets, personnel, books or records of the any Company or any of its Subsidiaries toAlternative Proposal, or participate in, facilitate, encourage, in response to any inquiries or knowingly assist any effort by, any third party proposals that could reasonably be expected to makelead to any Company Alternative Proposal, or has made, any Takeover Proposal or (iii) enter intoengage in discussions or negotiations with any person with respect to any Company Alternative Proposal, approve (iv) approve, endorse or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Company Alternative Proposal, or agree (v) enter into any letter of intent or commit similar document or any agreement or commitment providing for, any Company Alternative Proposal (except for confidentiality agreements specifically permitted pursuant to or agree to facilitate any Section 5.3(c); provided that none of the foregoingforegoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made a written Company Alternative Proposal to solely request the clarification of the terms and conditions thereof; provided, further, that a copy of any such written clarification shall be provided to Parent no less than one (1) business day prior to sending to such person or group of persons. Each Stockholder shallThe Company shall immediately terminate, and shall cause its respective representatives Subsidiaries and its and their Representatives to immediately terminate, all discussions or negotiations, if any, that are ongoing as of the date hereof with any third party with respect to a Company Alternative Proposal and shall immediately request the return of all related information.
(b) Promptly after receipt of any inquiries, proposals or offers related to, immediately cease or if any information is requested with respect to, or any negotiations or discussions are sought in connection with a Company Alternative Proposal (but in any event within twenty-four (24) hours), the Company shall notify Parent of such, and the identity of the person or group of persons involved, and shall provide copies of any written materials related thereto, and shall keep Parent informed on a reasonably current basis with respect to the status, terms, discussions and negotiations with respect to such inquiry, proposal or offer or any amendment thereto.
(c) Notwithstanding anything in this Agreement to the contrary, if prior to the receipt of the Company Stockholder Approval (i) the Company receives a Company Alternative Proposal which (x) constitutes a Company Superior Proposal or (y) which the Board of Directors determines in good faith, after consultation with its outside financial and legal advisors, would reasonably be terminated any expected to result in a Company Superior Proposal by the person (or group of persons) making such Company Alternative Proposal and all existing (ii) prior to taking the actions in (A) and (B) below, the Board of Directors determines in good faith, after consultation with its outside legal advisors, that failure to take such action would be inconsistent with such directors’ fiduciary duties under applicable Law, then, prior to receipt of the Company Stockholder Approval, the Company may take the following actions: (A) furnish (or cause to be furnished by its Representatives) nonpublic information to the persons (or group of persons) making such Company Alternative Proposal and its Representatives and financing sources, if, and only if, prior to so furnishing such information, the Company receives from the persons (or group of persons) and its Representatives and financing sources an executed confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company and its Subsidiaries than the Confidentiality Agreement and (B) engage in discussions or negotiations with the persons (or group of persons) and its Representatives with respect to the Company Alternative Proposal.
(d) Nothing contained in this Agreement shall prohibit the Company or its Board of Directors from disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or issuing any Person “stop-look-and-listen” communication, if, in the good faith judgment of the Company’s Board of Directors, after consultation with its outside legal advisors, such disclosure is required under applicable Law; provided that, (other than Parenti) conducted theretofore such disclosure shall be made at the latest time permissible under applicable Law and (ii) if such disclosure has the substantive effect of a Company Change of Recommendation (an “Effective Change of Recommendation”) (it being understood that, so long as the Company continues affirmatively to recommend to its stockholders the adoption of this Agreement and the transactions contemplated hereunder, it shall not be precluded from disclosing factually accurate information with respect to any Takeover Company Alternative Proposal or the operation of this Agreement with respect thereto), it shall be deemed a Company Change of Recommendation; provided that Parent shall not have the right to terminate pursuant to Section 7.1(c) in respect of any Effective Change of Recommendation.
(e) As used in this Agreement, “Company Alternative Proposal” shall mean any proposal or offer made by any person or group of persons prior to the receipt of the Company Stockholder Approval (other than a proposal or offer by Parent, any of its Subsidiaries or its or their affiliates or associates) relating to any (i) acquisition of the Company by merger or business combination transaction, or for a “merger of equals” with the Company; (ii) acquisition by any person of twenty-five percent (25%) or more of the assets of the Company and request from each Person that has executed its Subsidiaries, taken as a confidentiality agreement with whole; (iii) acquisition by any person of twenty-five percent (25%) or more of the outstanding shares of Company Common Stock; (iv) acquisition by the Company following which the stockholders of the Company immediately preceding the consummation of the transaction contemplated thereby cease to hold at least seventy-five percent (75%) of the outstanding equity of the Company immediately following such Stockholder the prompt return transaction or destruction (v) any disposition of all confidential information previously furnished to such Person or substantially all of the Company’s and its representativesSubsidiaries’ assets in Puerto Rico.
Appears in 2 contracts
Sources: Merger Agreement (At&t Inc.), Merger Agreement (Centennial Communications Corp /De)
No Solicitation. Except (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the extent the Company would be permitted under Section 6.04 earlier to occur of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Acceptance Time or, if earlier, or the termination of this Agreement in accordance with its terms, each Stockholder pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shall, and shall cause its respective representatives not Subsidiaries to, directly and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or indirectlynegotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) solicitthe Company receives a written Acquisition Proposal from a Third Party, initiate(ii) such Acquisition Proposal did not result from a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of the Company who is not an officer or director of the Company), propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public informationiii) the submission Board of Directors of the Company or any Takeover committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover a Superior Proposal; , and (iiiv) conductthe Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure to take the actions referred to in clause (A) or (B) below would constitute a breach of its fiduciary duties to the shareholders of the Company under Applicable Law, continuethen the Company may (A) furnish information and data with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, engage inproperties, solicitassets and personnel of the Company and its Subsidiaries and (B) enter into, or otherwise maintain and participate in any discussions or negotiations withwith the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, disclose or facilitate, any such discussions or negotiations; provided, however, that the Company (1) will not, and will not permit its Subsidiaries or its or their Representatives to, furnish any non-public information relating except pursuant to an Acceptable Confidentiality Agreement and (2) will promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries or access provided to such Third Party which was not previously provided to Parent. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may (without any determination by the Board of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) (x) following the receipt of its Subsidiaries an Acquisition Proposal from a Third Party that did not result from a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of the Company who is not an officer or director of the Company), contact such Third Party solely in order to clarify and understand the terms and conditions of an Acquisition Proposal made by such Third Party so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected to lead to, afford access a Superior Proposal and/or (y) direct any Persons to this Agreement, including the specific provisions of this Section 5.3.
(c) From and after the date hereof, and except to the businessextent expressly prohibited by a confidentiality agreement in place as of the date hereof, propertiesthe Company shall as promptly as practicable (and in any event within twenty-four (24) hours) notify Parent of any Acquisition Proposal, assetswhich notification shall include (i) a copy of the applicable written Acquisition Proposal (or, personnelif oral, books the material terms and conditions of such Acquisition Proposal) and (ii) the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developments, discussions or records negotiations regarding any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within twenty four (24) hours after receipt thereof (except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof).
(d) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Company or any of its Subsidiaries tois a party, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected other than to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter the extent the Board of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any Directors of the foregoing. Each Stockholder shallCompany or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and shall cause its respective representatives tooutside legal counsel, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect that failure to any Takeover Proposal and request from each Person that has executed do so would constitute a confidentiality agreement with such Stockholder breach of the prompt return or destruction of all confidential information previously furnished to such Person or its representativesdirectors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (CalAmp Corp.), Merger Agreement (Lojack Corp)
No Solicitation. Except (a) The Company shall, and shall --------------- direct and use all reasonable efforts to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time cause its officers, directors, employees and agents (and subject to compliance with the noticeincluding accountants, disclosure counsel, financial advisors and other obligations representatives) to, immediately cease any discussions or negotiations with any parties that the may be ongoing with respect to any Acquisition Proposal (as defined below in this Section 6.05(a)). The Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any agent (including accountants, counsel, financial advisors and shall cause other representatives) of, the Company or any of its respective representatives not Subsidiaries to, directly or indirectly, (i) solicit, facilitate or initiate, propose or knowingly encourage the submission of, any Acquisition Proposal (including, without limitation, the taking of any action which would make Section 203 of the Delaware Law inapplicable to the Acquisition Proposal) or (ii) participate in any discussions or negotiations regarding, or furnish or disclose to any person or legal entity (other than Parent or Purchaser) any information with respect to, or take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Takeover an Acquisition Proposal; provided, however, that if, prior to the acceptance for -------- ------- payment of Shares pursuant to the Offer, the Board determines in good faith that it is necessary to do so in accordance with its fiduciary duties to the Company's stockholders under applicable law as advised by experienced, independent counsel (which counsel may be Shearman & Sterling), the Company may, in response to an unsolicited Acquisition Proposal, and subject to compliance with Section 6.05(c), (x) furnish or disclose information with respect to the Company and its Subsidiaries to any third party pursuant to a customary confidentiality agreement on terms no less favorable to the Company nor more favorable to such third party than those contained in the Confidentiality Agreement and (y) participate in negotiations regarding such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any bona -------------------- fide inquiry, proposal or offer from any third party relating to any direct or indirect acquisition or purchase of all or a substantial part of the assets of the Company or of over 20% of the voting securities of the Company, any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of the voting securities of the Company, any merger, consolidation, business combination, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the Transactions, or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Offer or the Merger or which could reasonably be expected to dilute materially the benefits to Parent of the Transactions.
(b) Except as set forth in this Section 6.05, neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of the Offer, this Agreement or the Merger, (ii) conduct, continue, engage in, solicitapprove or recommend, or otherwise participate propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any agreement with respect to any Acquisition Proposal or any letter of intent, agreement in principle, or other similar understanding or arrangement with respect to an Acquisition Proposal or any discussions understanding, arrangement or negotiations withagreement requiring or incentivizing the Company to abandon, disclose terminate or fail to consummate the Merger or any of the Transactions. Notwithstanding the foregoing, in the event prior to the time of acceptance for payment of Shares pursuant to the Offer the Board determines in good faith that it is necessary to do so in accordance with its fiduciary duties to the Company's stockholders under applicable law as advised by experienced, independent counsel (which counsel may be Shearman & Sterling), the Board may recommend to its stockholders an Acquisition Proposal and in connection therewith withdraw or adversely modify its approval or recommendation of the Offer or the Merger if (i) a third party makes a Superior Proposal and (ii) (A) five Business Days have elapsed following delivery to Parent of a written notice of the determination by the Board to take such action and during such five Business Day period the Company has fully cooperated with Parent, with the intent of enabling Parent and Purchaser, on the one hand, and the Company, on the other hand, to agree to a modification of this Agreement and (B) at the end of such five Business Day period, the Acquisition Proposal continues to constitute a Superior Proposal, and concurrently therewith or afterwards the Board may terminate this Agreement pursuant to the provisions of Section 8.01(e) in order to permit the Company to enter into any agreement with respect to any such Superior Proposal; provided that any agreement with a third party with -------- respect to a Superior Proposal shall provide an opportunity for Parent (and any other person) to make an additional final bid for the Company and, if such bid would constitute a Superior Proposal, for the Company to accept such bid. For purposes of this Agreement, a "Superior Proposal" means any bona fide proposal ----------------- made by a third party to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all outstanding Shares pursuant to a tender offer or a merger or purchase of all of the assets of the Company (i) on terms which the Board determines in good faith (based on the written advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company and its stockholders than the Transactions, as proposed to be modified by Parent in accordance with the provisions of this paragraph, (ii) for which financing, to the extent required, is then available (it being understood that financing evidenced by highly confident letters and similar letters shall not be considered "available" for purposes of this Section 6.05), and (iii) which is not subject to any financing or due diligence condition.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 6.05, immediately after receipt thereof, the Company shall advise Parent in writing of any request for information regarding an Acquisition Proposal, or any inquiry or proposal with respect to an Acquisition Proposal. The Company shall keep Parent informed of the status of any such request or Acquisition Proposal. The Company shall promptly provide to Parent any non-public information relating concerning the Company provided to any other person in connection with any Acquisition Proposal which was not previously provided to Parent.
(d) Nothing contained in this Section 6.05 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 the Board determines in good faith that it is necessary to do so in accordance with its fiduciary duties to the Company's stockholders under applicable law as advised by experienced, independent counsel (which counsel may be Shearman & Sterling).
(e) The Company agrees not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company is a party. Immediately following the execution of this Agreement, the Company shall request each person or entity which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any of its Subsidiaries to, afford access portion thereof to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously heretofore furnished to such Person person or its representativesentity by or on behalf of the Company.
Appears in 2 contracts
Sources: Merger Agreement (H2o Acquisition Co), Merger Agreement (Nalco Chemical Co)
No Solicitation. Except (a) Prior to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termsExpiration Date, each Stockholder (in its capacity as a stockholder of the Company) shall not, shall cause each of its controlled Affiliates not to, and shall use reasonable best efforts to cause its respective representatives each person that controls such Stockholder (each, a “Representative”) not to, directly or indirectly, (i) solicit, initiate, propose knowingly encourage or knowingly take facilitate any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any a Company Takeover Proposal; , (ii) conduct, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to makelead to, or has madefurnish to any other person any information in connection with or for the purpose of encouraging or facilitating, any a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 2.1 and/or Section 5.3 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral), or (iii) approve, recommend or enter into, approve or propose to approve, recommend or enter into, any understandingletter of intent or similar document, agreement, commitment, or agreement in principleprinciple (whether written or oral, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement binding or other Contract relating nonbinding) with respect to any a Company Takeover Proposal, ; provided that nothing herein shall prohibit any Stockholder or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated controlled Affiliates or Representatives from participating in any and all existing discussions or negotiations with any Person respect to a possible stockholders’ consent or voting agreement in connection with a Company Takeover Proposal in the event that the Company becomes permitted to taken the actions set forth in clause (other than ParentA) conducted theretofore or clause (B) of Section 5.3(c) of the Merger Agreement with respect to such Company Takeover Proposal.
(b) For purposes of this Agreement, the term “Affiliate” shall have the meaning assigned to it in the Merger Agreement, but shall not include any Takeover Proposal and request from each Person entity whose equity securities are registered under the Exchange Act (or are publicly traded in a foreign jurisdiction), solely by reason of the fact that has executed one or more nominees or representatives of any of the Stockholders serves as a confidentiality agreement with member of its board of directors or similar governing body, unless the Stockholders or their Affiliates otherwise control such Stockholder entity. For purposes of this Agreement, the prompt return or destruction Company shall not be deemed to be an Affiliate of all confidential information previously furnished to such Person or its representativesany of the Stockholders.
Appears in 2 contracts
Sources: Voting and Support Agreement (Dollar Tree Inc), Voting and Support Agreement (Trian Fund Management, L.P.)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder a) SBBX shall not, and shall cause its the SBBX Subsidiaries and their respective representatives officers, directors, employees, investment bankers, financial advisors, attorneys, accountants, consultants, affiliates and other agents (collectively, the “Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, propose induce or knowingly encourage, or take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of of, any inquiry, offer or proposal that which constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations withregarding any Acquisition Proposal or furnish, disclose or otherwise afford access, to any non-public Person (other than PFS) any information relating or data with respect to the Company SBBX or any of its the SBBX Subsidiaries to, afford access or otherwise relating to an Acquisition Proposal (it being understood that issuing any press release or furnishing any documents filed or furnished by SBBX pursuant to the business, properties, assets, personnel, books or records requirements of the Company or any Exchange Act would not constitute a violation of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or this Section); (iii) without the prior written consent of PFS, release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which SBBX is a party; or (iv) enter into, approve or recommend into any understandingagreement, agreement in principle, principle or letter of intent, term sheet, acquisition intent with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, merger agreement, option agreement, joint venture agreement, partnership agreement in principle or other Contract letter of intent relating to any Takeover an Acquisition Proposal, or agree or commit to or agree to facilitate any . Any violation of the foregoingforegoing restrictions by SBBX or any Representative, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of SBBX or otherwise, shall be deemed to be a breach of this Agreement by SBBX. Each Stockholder SBBX and the SBBX Subsidiaries shall, and shall cause its respective representatives each of the SBBX Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations discussions, negotiations, and communications with any Person (other than Parent) conducted theretofore Persons with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return existing or destruction of all confidential information previously furnished to such Person or its representativespotential Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Sb One Bancorp), Merger Agreement (Provident Financial Services Inc)
No Solicitation. (a) Except to the extent the Company would be permitted under as set forth in this Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice4.7, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder Parent shall not, nor shall Parent authorize or permit any of its or its Subsidiaries’ respective Subsidiaries or any of its or its Subsidiaries’ respective directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and shall cause its respective representatives not torepresentatives, collectively, “Representatives”) to directly or indirectly, :
(i) solicit, initiate, propose encourage or knowingly take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal; or
(ii) except with respect to those persons set forth on Schedule 4.7 attached hereto, enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal.
(b) Other than during the Exclusivity Period, the Parent may, to the extent required by its fiduciary obligations, as determined in good faith by the Parent’s board of directors after consultation with outside counsel and its other advisors, in response to a Superior Proposal made other than during the Exclusivity Period that did not result from a breach by Parent of this Section 4.7, and subject to compliance with Section 4.7(c), (i) furnish information with respect to the Business to the person making such Superior Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (ii) participate in discussions or negotiations with such person and its Representatives regarding any Superior Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in Section 4.7(a) by any Representative of the Parent, or any of its Affiliates, whether or not such person is purporting to act on behalf of Parent, or otherwise, shall be deemed to be a breach of Section 4.7(a) by Parent.
(c) If BGS, the Sellers or any Affiliate thereof receives 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 Parent shall notify the Buyer orally, with written confirmation to follow promptly (and in any event within twenty-four (24) hours), of such Acquisition Proposal, request or inquiry, including the material terms and conditions thereof (which, for avoidance of doubt, shall not include the identity of the person making such proposal). Parent shall not provide any information to or participate in discussions or negotiations with the person or entity making any Superior Proposal until five (5) Business Days after Parent has first notified the Buyer of such Acquisition Proposal as required by the preceding sentence.
(d) The Parent shall (i) keep the Buyer informed, on a current basis, of the status and details (including any change to the material terms and conditions, which, for avoidance of doubt, shall not include the identity of the person making such proposal) of any such Acquisition Proposal or inquiry, (ii) provide to the Buyer as soon as reasonably practicable after receipt or delivery thereof copies of all correspondence and other written material sent or provided to the Parent from any third party in connection with any Acquisition Proposal or sent or provided by the Parent to any third party in connection with any Superior Proposal (which, for avoidance of doubt, shall not include the identity of the person making such proposal), and (iii) if the Buyer shall make a counterproposal, consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal. Contemporaneously with providing any information to a third party in connection with any such Superior Proposal or inquiry, the Parent shall furnish a copy of such information to the Buyer.
(e) On the first day of the Exclusivity Period, the Parent shall cause its subsidiaries and its and their Representatives to cease immediately all discussions and negotiations regarding any proposal that constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representatives.
Appears in 2 contracts
Sources: Merger Agreement (Bowne & Co Inc), Merger Agreement (Lionbridge Technologies Inc /De/)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from From the date of this Agreement hereof until the Effective Time or, if earlier, earlier of the termination of this Agreement in accordance with pursuant to its termsterms or the Effective Time, each Stockholder shall notof Parent and the Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use reasonable best efforts to cause its respective and its Subsidiaries’ Employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, “Representatives”) not to (and shall not authorize any of them to, ) directly or indirectly, : (i) solicit, initiate, propose encourage, knowingly facilitate or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 5.3(g)), (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter intoengage in discussions with any Person with respect to any Acquisition Proposal, approve except as to the existence of the provisions of this Section 5.3, (iv) approve, endorse or recommend any understandingAcquisition Proposal (except to the extent specifically permitted pursuant to Section 5.3(d)), agreement in principle, or (v) enter into any letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement intent or other similar document or any Contract contemplating or otherwise relating to any Takeover ProposalAcquisition Proposal or transaction contemplated thereby. Parent and the Company, or agree or commit to or agree to facilitate any of as the foregoing. Each Stockholder shallcase may be, and shall cause its their respective representatives to, Subsidiaries will immediately cease and be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Acquisition Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished respect to such Person or its representativesitself.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Brocade Communications Systems Inc), Agreement and Plan of Reorganization (McData Corp)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from From the date of this Agreement until the Effective Time or, if earlier, or the termination of this Agreement in accordance with pursuant to Article IX hereof, the Company agrees that the Company and its terms, each Stockholder shall Subsidiaries will not, and shall will cause its their respective representatives officers, directors, employees, other agents (including, without limitation, investment bankers, attorneys or accountants) not to, directly or indirectly, (i) take any action to solicit, initiate, propose encourage, enter into any agreement relating to or knowingly take otherwise facilitate any action to facilitate offer or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutesfor, or could reasonably be expected to lead toany indication of interest in an Acquisition Proposal, any Takeover Proposal; (ii) conduct, continue, engage in, solicitwaive any provision of any standstill or similar agreements entered into by the Company of its Subsidiaries, or otherwise participate (iii) engage in any or continue discussions or negotiations withwith or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal, or disclose any non-public nonpublic information relating to the Company or any of its Subsidiaries toSubsidiaries, respectively, or afford access to the business, their respective properties, assets, personnel, books or records of the Company or records, to any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party Person that could reasonably may be expected to makeconsidering making, or has made, any Takeover Proposal or an Acquisition Proposal. Notwithstanding the foregoing, (iiii) enter into, approve or recommend any understanding, agreement nothing contained in principle, letter this Section 6.3 will prohibit the Board of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover ProposalDirectors of the Company from (A) furnishing information to, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing entering into discussions or negotiations with with, any Person (other than Parent) conducted theretofore in connection with an unsolicited bona fide proposal in writing by such Person with respect to an Acquisition Proposal, if, and only to the extent that (1) the Board of Directors of the Company, after consulting with outside legal counsel to the Company, determines in good faith that such action is required for the Board of Directors of the Company to comply with its fiduciary duties to stockholders imposed by Law and (2) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to the Acquiror to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person and the Company keeps Acquiror informed of the status of the principal financial terms of any Takeover such negotiations or discussions; or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and request from each Person that has executed (ii) taking the actions contemplated by (i) above under the circumstances described therein will not be deemed to be a confidentiality agreement with such Stockholder the prompt return or destruction breach of all confidential information previously furnished to such Person or its representativesthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Unitrode Corp)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from a) From the date of this Agreement until through the Effective Time orTime, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder LSBG shall not, and nor shall cause it authorize or permit any of its Subsidiaries or their respective representatives not directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, propose or knowingly take any action to facilitate initiate or encourage (including by way of furnishing non-public information) the submission of information or assistance), or take any Takeover Proposal other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or could is reasonably be expected likely to lead to, any Takeover Acquisition Proposal; , (ii) conductenter into any agreement with respect to an Acquisition Proposal, continue, engage in, solicit, or otherwise (iii) participate in any discussions or negotiations withregarding any Acquisition Proposal or furnish, disclose or otherwise afford access, to any Person (other than BHB) any information or data with respect to LSBG or any of the LSBG Subsidiaries or otherwise relating to an Acquisition Proposal, or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. Notwithstanding the foregoing sentence, LSBG may take any of the actions described in clause (iii) of the foregoing sentence only if, (A) LSBG has received a bona fide unsolicited written Acquisition Proposal prior to the LSBG Meeting that did not result from a breach of this Section 5.11, (B) the LSBG Board of Directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and its financial advisor, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal, (C) LSBG provides BHB with at least three (3) Business Day’s prior notice of such determination (the “Notice of Superior Proposal”), which notice shall include the name of such Person and the material terms and conditions of any such Acquisition Proposal, and (D) prior to furnishing or affording access to any information or data with respect to LSBG or otherwise relating to an Acquisition Proposal, LSBG receives from such Person a confidentiality agreement with terms no less favorable to LSBG than those contained in the Confidentiality Agreement between BHB and LSBG. LSBG shall promptly provide to BHB any non-public information relating regarding LSBG and its Subsidiaries provided to any other Person that was not previously provided to BHB, such additional information to be provided no later than the date of provision of such information to such other party.
(b) Notwithstanding Section 5.04, prior to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records date of the Company or any of its Subsidiaries toLSBG Meeting, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, the LSBG Board may approve or recommend any understandingto the stockholders of LSBG a Superior Proposal and withdraw, agreement change, qualify or modify the LSBG Recommendation in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any connection therewith (a “Change in Recommendation”) after the fifth (5th) Business Day following BHB’s receipt of the foregoing. Each Stockholder shallNotice of Superior Proposal advising BHB that the LSBG Board has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result from a breach of this Section 5.11) constitutes a Superior Proposal (it being understood that LSBG shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its affiliates that LSBG proposes to accept and the subsequent notice period (which shall not shorten such original five (5) Business Day period) shall be two (2) Business Days) if, but only if, (a) the LSBG Board has reasonably determined in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be reasonably likely to violate its fiduciary duties to LSBG’s stockholders under applicable law, and shall (b) (i) during such five (5) Business Day period or two (2) Business Day Period (as the case may be), LSBG has negotiated, and has used its reasonable best efforts to cause its respective representatives tofinancial and legal advisors to negotiate, with BHB in good faith to make such adjustments, modifications or amendments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) at the end of such five (5) Business Day period or two (2) Business Day period (as the case may be), after taking into account any such adjusted, modified or amended terms as may have been committed to in writing by BHB since its receipt of such Notice of Superior Proposal (provided, however, that BHB shall not have any obligation to propose any adjustments, modifications or amendments to the terms and conditions of this Agreement), the LSBG Board has again in good faith made the determination (x) in clause (a) of this Section 5.11, and (y) that such Acquisition Proposal constitutes a Superior Proposal. Notwithstanding the foregoing, the withdrawal, changing, qualifying or modifying of the LSBG Recommendation or the making of a Change in Recommendation by the LSBG Board shall not change the approval of the LSBG Board for purposes of causing any applicable “moratorium,” “control share,” “fair price,” “takeover,” “interested stockholder” or similar law to be inapplicable to this Agreement and the LSBG Voting Agreements and the transactions contemplated hereby and thereby, including the Merger.
(c) LSBG shall immediately cease and cause to be terminated any and all existing discussions or negotiations with any Persons (other than BHB) conducted heretofore with respect to any of the foregoing, and shall use reasonable best efforts to cause all Persons other than BHB who have been furnished confidential information regarding LSBG in connection with the solicitation of or discussions regarding an Acquisition Proposal within the twelve (12) months prior to the date hereof promptly to return or destroy such information. LSBG agrees not to release any third party from the confidentiality and standstill provisions of any agreement to which LSBG is or may become a party, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any Person (other than ParentBHB) conducted theretofore to make an Acquisition Proposal. LSBG shall ensure that the directors, officers, employees, agents and representatives (including any investment bankers, financial advisors, attorneys, accountants or other retained representatives) of LSBG are aware of the restrictions described in this Section 5.11 as reasonably necessary to avoid violations thereof. It is understood that any violation of the restrictions set forth in this Section 5.11 by any director, officer, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of LSBG, at the direction or with respect the consent of LSBG, shall be deemed to any Takeover Proposal and request from each Person that has executed be a confidentiality agreement with such Stockholder the prompt return or destruction breach of all confidential information previously furnished to such Person or its representativesthis Section 5.11 by LSBG.
Appears in 2 contracts
Sources: Merger Agreement (Lake Sunapee Bank Group), Merger Agreement (Bar Harbor Bankshares)
No Solicitation. (a) Except to the extent otherwise permitted by this Section 5.3, during the Pre-Closing Period, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause each of its Subsidiaries not to, and shall direct and shall use reasonable efforts to cause its and their respective representatives officers, directors and employees and their respective agents, financial advisors, investment bankers, attorneys and accountants (such officers, directors, employees, agents, financial advisors, investment bankers, attorneys and accountants, collectively, “Representatives”) not to, directly or indirectlyindirectly through intermediaries, (i) solicit, initiate, propose knowingly encourage or knowingly take facilitate any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any a Company Takeover Proposal; , (ii) conduct, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.3 and to limit its conversation or other communication exclusively to such referral), or (iii) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent, memorandum of understanding, agreement (including an acquisition agreement, merger agreement or joint venture agreement) or similar document, agreement, commitment or agreement in principle (whether written, oral, binding or non-binding) with respect to a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3(c)) (an “Alternative Acquisition Agreement”).
(b) The Company shall, and shall cause its Subsidiaries to, promptly request that each Person that has executed a confidentiality or non-disclosure agreement in connection with any actual or potential Company Takeover Proposal that remains in effect as of the date of this Agreement to return or destroy all confidential information in the possession of such person or its Representatives. The Company shall not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party; provided that, notwithstanding anything to the contrary contained in this Agreement, if the Company Board of Directors determines in good faith, after consultation with its outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may waive any such standstill provision solely to the extent necessary to permit a third party to make, on a confidential basis to the Company Board of Directors, a Company Takeover Proposal, conditioned upon such third party agreeing that the Company shall not be prohibited from providing any information to Parent (including regarding any such Company Takeover Proposal) in accordance with, disclose and otherwise complying with, this Section 5.3. Except to the extent otherwise permitted by the proviso in the foregoing sentence, the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, if, at any time after the date of this Agreement and prior to the earlier of the time that the Company Stockholder Approval is obtained or this Agreement is terminated in accordance with Section 7.1 (the “Cut-off Time”), the Company or any of its Representatives receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a knowing or intentional breach of this Section 5.3 by the Company or any of its Subsidiaries or their respective Representatives that the Company Board of Directors determines in good faith, after consultation with its independent financial advisor and outside legal counsel, constitutes a Company Superior Proposal or would reasonably be expected to result in a Company Superior Proposal and the Company Board of Directors determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company and its Representatives may (i) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the person who has made such Company Takeover Proposal if the Company receives from such person an executed confidentiality agreement containing terms that are not less restrictive to the other party than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making or amendment of a Company Takeover Proposal) (such confidentiality agreement, an “Acceptable Confidentiality Agreement”); provided that the Company shall concurrently with the delivery to such person make available to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives that has not been previously provided to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal. The Company shall promptly (and in any event within forty-eight (48) hours) notify Parent and Merger Sub if the Company commences furnishing non-public information and/or commences discussions or negotiations as provided in this Section 5.3(c).
(d) The Company shall promptly (and in no event later than forty-eight (48) hours after receipt) notify Parent in writing in the event that the Company or any of its Representatives receives a Company Takeover Proposal or a request for information relating to the Company or any of its Subsidiaries tothat contemplates a Company Takeover Proposal, afford access including the identity of the person making the Company Takeover Proposal and the material terms and conditions thereof (including an unredacted copy of such Company Takeover Proposal or, where such Company Takeover Proposal is not in writing, a description of the terms thereof). The Company shall keep Parent reasonably informed, on a reasonably current basis, as to the businessstatus of discussions or negotiations relating to such Company Takeover Proposal (including by promptly (and in no event later than forty-eight (48) hours after receipt) providing to Parent copies of any correspondence, propertiesproposals, assetsindications of interest, personneland/or draft agreements relating to such Company Takeover Proposal). The Company agrees that it and its Subsidiaries will not enter into any agreement with any person subsequent to the date of this Agreement that prohibits the Company from providing any information to Parent in accordance with, books or records otherwise complying with, this Section 5.3.
(e) Notwithstanding anything to the contrary set forth in this Agreement, if, at any time prior to the Cut-off Time, the Company or any of its Representatives receives a bona fide written Company Takeover Proposal from any person that did not result from a knowing or intentional breach of this Section 5.3 by the Company or any of its Subsidiaries toor their respective Representatives that the Company Board of Directors determines in good faith, after consultation with its independent financial advisor and outside legal counsel, constitutes a Company Superior Proposal and the Company Board of Directors determines in good faith, after consultation with its outside legal counsel, that the failure to terminate this Agreement in order to enter into a definitive Alternative Acquisition Agreement with respect to such Company Superior Proposal would be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company Board of Directors may terminate this Agreement in accordance with Section 7.1(h) but only if: (i) prior to taking any such action, the Company provides Parent with no fewer than four (4) Business Days’ prior written notice of its intention to take such action, attaching a copy of the Company Superior Proposal or participate inany proposed Alternative Acquisition Agreement and a copy of any related financing commitments in the Company’s possession (or, facilitatewhere no such copy is available, encouragea description of such Company Superior Proposal or proposed Alternative Acquisition Agreement), and during the four (4) Business Day period, the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, concerning any revisions to the terms of this Agreement proposed by Parent and either (A) Parent shall not have irrevocably proposed revisions to the terms and conditions of this Agreement prior to the end of such period or knowingly assist any effort by(B) if Parent within such period shall have proposed irrevocable revisions to the terms and conditions of this Agreement, any third party the Company Board of Directors determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that could reasonably be expected to make, or has made, any the Company Takeover Proposal remains a Company Superior Proposal with respect to Parent’s revised proposal and, after consultation with its outside legal counsel, that the failure to terminate this Agreement and accept such Company Superior Proposal would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, that, in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration or any financing contingencies) of such Company Takeover Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with the notice described in clause (i) above and the four (4) Business Days’ notice period referred to in clause (i) above shall be extended for an additional two (2) Business Days after notification of such change to Parent to the extent Parent wishes to negotiate; (ii) prior to or substantially simultaneously with such termination the Company shall have entered into a definitive Alternative Acquisition Agreement with respect to such Company Superior Proposal; and (iii) enter intoimmediately prior to or concurrently with such termination the Company shall have paid Parent the Termination Fee pursuant to Section 7.3(a)(iv).
(f) The Company Board of Directors shall not (i) (A) fail to include the Company Recommendation in the Proxy Statement/Prospectus when disseminated to the Company’s stockholders, (B) change, qualify, withhold, withdraw or modify (or authorize or publicly propose to change, qualify, withhold, withdraw or modify), in any such case in a manner adverse to Parent, the Company Recommendation, (C) publicly make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Company Board of Directors of the type contemplated by Rule 14d-9(f) under the Exchange Act, (D) adopt, approve or recommend, or publicly propose to adopt, approve or recommend any understanding, agreement in principle, letter to stockholders of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any the Company a Company Takeover Proposal, or agree (E) other than with respect to a tender offer or commit exchange offer covered by Section 5.3(e)(i)(C), if a Company Takeover Proposal shall have been publicly announced or disclosed, fail to recommend against such Company Takeover Proposal or agree fail to facilitate reaffirm the Company Recommendation, in either case on or prior to the later of (x) the second (2nd) Business Day prior to the date of the Company Stockholder Meeting (or any adjournment or postponement thereof), or (y) the tenth (10th) Business Day after the Company Takeover Proposal shall have been publicly announced or disclosed, but in any event at least one (1) Business Day prior to the Company Stockholder Meeting, as applicable) (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”), or (ii) authorize, cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement.
(g) Notwithstanding anything to the contrary contained in this Agreement, prior to the Cut-off Time, but not after, if (x) an Intervening Event shall have occurred or (y) a bona fide written Company Takeover Proposal is received from any person that did not result from a knowing or intentional breach of this Section 5.3 that the Company Board of Directors has determined in good faith, after consultation with its independent financial adviser and outside legal counsel, constitutes a Company Superior Proposal and, in each case of (x) and (y), the Company Board of Directors determines in good faith, after consultation with its outside legal counsel, that failure to make a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company Board of Directors may make a Company Adverse Recommendation Change; provided, however, that, prior to taking such action, (i) the Company has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action, including, (A) if the Company Adverse Recommendation Change is due to an Intervening Event, a description of such Intervening Event and the reasons for the proposed Company Adverse Recommendation Change, and (B) if the Company Adverse Recommendation Change is in connection with a purported Company Superior Proposal, the terms and conditions of, and the identity of the person making, any such Company Superior Proposal and a copy of the Company Superior Proposal or any proposed Alternative Acquisition Agreement and a copy of any related financing commitments in the Company’s possession (or, in each case, if not provided in writing to the Company, a written summary of the terms thereof), (ii) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, concerning any revisions to the terms of this Agreement proposed by Parent, and (iii) following the end of such notice period, the Company Board of Directors shall have determined, after consultation with its independent financial advisor and outside legal counsel, and giving due consideration to the revisions to the terms of this Agreement to which Parent has irrevocably committed in writing, that (A) if such proposed Company Adverse Recommendation Change is in response to an Intervening Event, the failure to make a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law and (B) if such proposed Company Adverse Recommendation Change is in response to a purported Company Superior Proposal, the Company Superior Proposal would nevertheless continue to constitute a Company Superior Proposal (assuming the revisions committed to by Parent were to be given effect) and that the failure to make a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law, and (iv) if such proposed Company Adverse Recommendation Change is in response to a purported Company Superior Proposal, in the event of any change to any of the foregoing. Each Stockholder financial terms (including the form, amount and timing of payment of consideration) of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (i) above of this proviso and the four (4) Business Days’ notice period referred to in clause (i) above of this proviso shall cause be extended for an additional two (2) Business Days after notification of such change to Parent.
(h) Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board of Directors from complying with its respective representatives todisclosure obligations under applicable Law with regard to a Company Takeover Proposal, immediately cease including (i) taking and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representatives.disclo
Appears in 2 contracts
Sources: Merger Agreement (Endologix Inc /De/), Merger Agreement (TriVascular Technologies, Inc.)
No Solicitation. Except (a) Upon the execution and delivery of this Agreement, the Company will immediately cease and cause to be terminated any existing negotiations with any third party relating to any Alternative Acquisition Proposal. The Company shall promptly (and in any event within three (3) Business Days following the date hereof) request in writing that (i) each Person that entered into a confidentiality or other similar agreement with the Company or any of its Subsidiaries since January 1, 2008 and (ii) each Person to which the Company or any of its Subsidiaries furnished confidential information since January 1, 2008 under a confidentiality or other similar agreement existing as of such date, in each case in connection with a potential Alternative Acquisition Transaction, return or destroy (to the extent destruction of such information is permitted by such confidentiality agreement) all confidential information furnished to such Person by or behalf of the Company would be permitted under Section 6.04 of thereunder.
(b) At all times during the Merger Agreement to take such actions at the applicable time (and subject to compliance period commencing with the notice, disclosure execution and other obligations that the Company would be required to comply with in connection therewith), from the date delivery of this Agreement and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Section 7 and the Acceptance Time, the Company and its terms, each Stockholder shall Subsidiaries will not, and will use all reasonable efforts to cause (including directly instructing) any of their respective directors, officers or other employees, controlled Affiliates, or any investment banker, attorney or other advisors or representatives retained by any of them (collectively, the “Company Representatives”) not to (and shall cause its respective representatives not authorize any of them to), directly or indirectly, : (i) solicit, initiate, propose initiate or knowingly take any action to encourage, facilitate or encourage induce the making, submission or announcement of any Alternative Acquisition Proposal or Acquisition Transaction; (including by way ii) engage in any negotiations with a third party concerning any Alternative Acquisition Proposal or Acquisition Transaction, (iii) furnish to any Person (other than Parent, Acquisition Sub or any designees of furnishing Parent or Acquisition Sub) any non-public informationinformation relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) the submission of in either case, in connection with any Takeover Alternative Acquisition Proposal or Acquisition Transaction, or take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to any Takeover ProposalAlternative Acquisition Proposal or Acquisition Transaction; (iiiv) conductapprove, continueendorse or recommend any Alternative Acquisition Proposal or Acquisition Transaction; (v) execute or enter into any letter of intent, engage in, solicit, memorandum of understanding or Contract (other than a confidentiality agreement as contemplated in this Section 5.2(b)) contemplating or otherwise relating to any Alternative Acquisition Proposal or Acquisition Transaction; or (vi) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than Parent). Notwithstanding anything to the contrary contained in this Agreement, the Board of Directors of the Company may, directly or indirectly through advisors, agents or other intermediaries, subject to the Company’s compliance with the provisions of this Section 5.2, (A) engage or participate in any discussions or negotiations withwith any Person that has made (and not withdrawn) an Alternative Acquisition Proposal in writing that the Board of Directors of the Company concludes in good faith (after consultation with Pagemill Partners or another reputable financial advisor and the Company’s outside legal counsel) constitutes or could reasonably be expected to lead to a Superior Proposal, disclose and/or (B) furnish to any Person that has made (and not withdrawn) an Alternative Acquisition Proposal in writing that the Board of Directors of the Company concludes in good faith (after consultation with Pagemill Partners or another financial advisor of nationally recognized standing and the Company’s outside legal counsel) constitutes or could reasonably be expected to lead to a Superior Proposal any non-public information relating to the Company or any of its Subsidiaries to, afford access pursuant to an executed confidentiality agreement containing limitations on the use and disclosure of confidential information furnished to such third party by the Company that are no less favorable to the business, properties, assets, personnel, books or records Company than the provisions of the Confidentiality Agreement, provided that (in the case of any action proposed to be taken pursuant to the foregoing clauses (A) or (B)), (1) neither the Company or nor any of its Subsidiaries shall have breached the terms of this Section 5.2, (2) the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that such action is required in order to comply with its fiduciary duties to the Company’s stockholders under applicable Legal Requirements, (3) prior to engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Person, the Company gives Parent written notice of the identity of such third party and of the Company’s intention to engage in negotiations with, or furnish confidential information to, such third party, and all of the material terms and conditions of such Alternative Acquisition Proposal (unless such Alternative Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof) and of the Company’s intention to engage or participate in, facilitate, encouragein discussions or negotiations with, or knowingly assist furnish non-public information to, such Person, and (4) prior to providing any effort bysuch confidential information to such third party, the Company makes available such confidential information to Parent (to the extent such confidential information has not been previously made available by the Company to Parent).
(c) In addition to the obligations of the Company set forth in Section 5.2(b), the Company shall promptly, and in all cases within twenty four (24) hours of its receipt, notify Parent orally and in writing (whether or not the Company is a party to or otherwise bound by a confidentiality or other similar agreement that purports to prohibit the Company from disclosing any third party of the following information) of the following: (i) any Alternative Acquisition Proposal; (ii) any request for information that the Company’s Board of Directors determines could reasonably be expected to make, or has made, any Takeover Proposal lead to an Alternative Acquisition Proposal; or (iii) enter intoany inquiry with respect to, approve or recommend which the Company’s Board of Directors determines could reasonably be expected to lead to, any understandingAlternative Acquisition Proposal, agreement in principlethe terms and conditions of such Alternative Acquisition Proposal, letter request or inquiry, and the identity of intentthe Person or group making any such Alternative Acquisition Proposal, term sheetrequest or inquiry. The Company shall keep Parent informed, acquisition agreementon a reasonably current basis, merger agreementof the status and material details of any such Alternative Acquisition Proposal, option agreementrequest or inquiry, joint venture agreementincluding material amendments or proposed amendments as to price, partnership agreement or closing conditions and other Contract material terms thereof.
(d) In addition to the foregoing, the Company shall give Parent prior written notice of any meeting of the Board of Directors of the Company at which the Board of Directors of the Company is reasonably expected to consider an Alternative Acquisition Proposal, an inquiry relating to any Takeover a potential Alternative Acquisition Proposal, or agree or commit a request to or agree provide nonpublic information to facilitate any Person relating to a potential Alternative Acquisition Proposal, with Parent receiving a similar amount of notice of such meeting as is provided to members of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder Board of Directors of the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Simtek Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
No Solicitation. Except From and after the date hereof until the Expiration Date, the Stockholder, in his or her capacity as a stockholder of the Company, shall not, nor shall such Stockholder in such capacity authorize any of his or her affiliates, other than the Company in accordance with the terms of the Merger Agreement, to (and, to the extent applicable to the Stockholder, such Stockholder shall use reasonable best efforts to prevent any of his or her representatives or affiliates, other than the Company would be permitted under Section 6.04 in accordance with the terms of the Merger Agreement to take such actions at the applicable time to) (and subject to compliance with the noticea) initiate, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not to, directly or indirectly, (i) solicit, initiate, propose induce or knowingly encourage, or take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of of, any inquiry, offer or proposal that which constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; (iib) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations withregarding any Acquisition Proposal or furnish, disclose or otherwise afford access, to any non-public Person (other than Buyer) any information relating or data with respect to the Company or any of its Subsidiaries toor otherwise relating to an Acquisition Proposal; (c) release any Person from, afford access waive any provisions of, or fail to the business, properties, assets, personnel, books enforce any confidentiality agreement or records of standstill agreement to which the Company is a party; (d) solicit proxies or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to make, or has made, any Takeover an Acquisition Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parentthe Merger Agreement) conducted theretofore or otherwise encourage or assist any party in taking or planning any action that would compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (e) initiate a stockholders’ vote or action by consent of the Company’s stockholders with respect to an Acquisition Proposal (other than the Merger Agreement); (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any Takeover voting securities of the Company that takes any action in support of an Acquisition Proposal; or (g) enter into any agreement, agreement in principle or letter of intent with respect to any Acquisition Proposal and request from each Person that has executed a confidentiality or approve or resolve to approve any Acquisition Proposal or any agreement, agreement with such Stockholder the prompt return in principle or destruction letter of all confidential information previously furnished intent relating to such Person or its representativesan Acquisition Proposal.
Appears in 2 contracts
Sources: Voting Agreement (PCSB Financial Corp), Voting Agreement (Brookline Bancorp Inc)
No Solicitation. Except (a) The Company shall and shall cause its Representatives to immediately cease any and all existing discussions, communications or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal.
(b) Subject to Section 5.2(c), at all times during the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance period commencing with the notice, disclosure execution and other obligations that the Company would be required to comply with in connection therewith), from the date delivery of this Agreement and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with its termspursuant to Article IX and the Effective Time, each Stockholder the Company shall not, and nor shall cause it authorize or permit any of its respective representatives not Representatives to, directly or indirectly, (i) solicit, initiate, propose solicit or knowingly encourage, or take any action to facilitate the making of, any offer or encourage proposal which constitutes or is reasonably likely to lead to an Acquisition Proposal, (including by way ii) furnish to any Person (other than Parent, Merger Sub or any esignees of furnishing Parent or Merger Sub) any non-public informationinformation concerning the Company’s business, assets (tangible and intangible) or properties with the intent to induce the making, submission of any Takeover or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or the making of any proposal or other communication that constitutes, or could would reasonably be expected to lead toto an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any Takeover Person with respect to an Acquisition Proposal; , or (iv) negotiate, approve, recommend or enter into any Contract with respect to any Acquisition Transaction. The Company agrees that any material violation of the restrictions set forth in this Section 5.2(b) by it or any of its Representatives who is (x) a director or officer of the Company or any Subsidiary, (y) a senior-level employee (i.e., managing director (or similar title) or above) of any financial advisor retained by the Company or (z) a partner of any law firm retained by the Company or any other Person acting with the actual authority of the Company (such Representatives and Persons collectively, “Senior Representatives”) shall be deemed a material breach of this Agreement by the Company.
(c) Notwithstanding anything to the contrary set forth in this Section 5.2, prior to the Effective Time, the Company Board, may, directly or indirectly through the Company’s Representatives, (i) participate or engage in discussions or negotiations with any Person that has, in the absence of any material violation of Section 5.2(b) by the Company, made a bona fide, written and unsolicited Acquisition Proposal and that the Company Board determines in good faith, After Consultation, either constitutes or would reasonably be expected to lead to a Superior Proposal, and/or (ii) conductfurnish to any Person that has, continuein the absence of any material violation of Section 5.2(b) by the Company, engage inmade an Acquisition Proposal of the type referred to in clause (i), solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries toand/or afford to any Person that has, afford in the absence of any material violation of Section 5.2(b) by the Company, made such an Acquisition Proposal access to the business, properties, assets, books, records or other non-public information, or to any personnel, books of the Company or records any of its Subsidiaries, in each case under this clause (ii) pursuant to a confidentiality agreement that is no less favorable to the Company, in the aggregate, than the Confidentiality Agreement; provided, however, that in the case of any action taken pursuant to the preceding clauses (i) or (ii), (A) the Company Board shall have determined in good faith After Consultation that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of directors of a Delaware corporation under Delaware Law, (B) within twenty four (24) hours following such determination, the Company gives Parent written notice of the identity of such Person and the material terms of such Acquisition Proposal including any modifications thereto (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof including any modifications thereto) and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person, and shall in no event begin providing such information to such Person prior to providing such notice to the Parent. For purposes of this Section 5.2, it is hereby clarified that the fact that the Company and its Representatives have previously engaged in any discussions or negotiations with a Person shall not prevent by itself an Acquisition Proposal made by such Person from being considered unsolicited.
(d) In addition to the obligations of the Company set forth in Section 5.2(b), the Company shall promptly (and in any event within twenty-four (24) hours from the time at which the Company becomes aware) notify Parent in writing if the Company becomes aware of the receipt by the Company or any of its Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (unless such Acquisition Proposal, request or inquiry is in written form, in which case the Company shall give Parent a copy thereof), and the identity of the Person or group making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent reasonably informed of the terms and the status of any such Acquisition Proposal, request or inquiry on a prompt basis, and in any event no later than twenty-four (24) hours after the occurrence of any material changes to any such Acquisition Proposal (including the terms and conditions thereof and of any modification thereto), and any developments, discussions and negotiations concerning any such Acquisition Proposal, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions.
(e) The Company shall not, and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to provide to the Parent the information described in this Section 5.2, and neither the Company nor any of its Subsidiaries is currently party to any agreement that prohibits the Company from providing the information described in this Section 5.2 to the Parent. The Company (A) except to the extent inconsistent with the fiduciary duties of directors of a Delaware corporation under applicable Delaware Law, shall not, and shall cause its Subsidiaries not to, terminate, waive, amend or modify, or grant permission under, any standstill provision in any confidentiality agreement to which it or any of its Subsidiaries is or becomes a party (other than as occurs in accordance with the terms of any such standstill provision in effect as of the date hereof), and (B) shall, and shall cause its Subsidiaries to, use reasonable best efforts to enforce such standstill provisions if it becomes aware of any material breach of any such standstill provision by the party subject thereto.
(f) The Company shall promptly (but in no event later than two (2) Business Days after the date of this Agreement) (i) demand that each individual or entity that has executed a confidentiality agreement since February 27, 2014 in connection with any potential Acquisition Proposal return (or destroy, to the extent permitted by the terms of the applicable confidentiality agreement) all confidential information furnished to such individual or entity by or on behalf of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter accordance with the terms of intent, term sheet, acquisition the applicable confidentiality agreement, merger agreement, option agreement, joint venture agreement, partnership agreement and (ii) revoke or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any withdraw access of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent, Merger Sub and their Representatives) conducted theretofore to any data room (virtual or actual) containing any non-public information with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person Company or its representativesSubsidiaries in connection with an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
No Solicitation. Except to the extent the The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder subsidiaries shall not, nor shall they permit any of their respective officers and shall cause directors (or affiliates of any of such officers or directors), controlled affiliates, or employees or any investment banker, attorney, accountant or other advisor or representative retained by (or otherwise working on behalf of) the Company or any of its respective representatives not tosubsidiaries (collectively, “Representatives”) to directly or indirectly, : (i) solicit, initiate, propose knowingly encourage, knowingly facilitate, or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 5.4(g)(i)), (ii) participate or otherwise engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action (including granting any person a waiver or release under any standstill or similar agreement with respect to any class of equity security of the Company or any of its subsidiaries or amending, waiving or terminating the Rights Agreement, other than as contemplated by this Agreement, or redeeming any rights under the Rights Agreement, other than as contemplated by this Agreement) to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter intoengage in discussions with any person with respect to any Acquisition Proposal, approve except as to the existence of these provisions, (iv) approve, endorse or recommend any understandingAcquisition Proposal (except to the extent specifically permitted pursuant to Section 5.4(d)), agreement in principle, or (v) enter into any letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement intent or other similar document or any Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoingan Acquisition Proposal (other than a confidentiality agreement entered into with a party making an Acquisition Proposal as permitted by Section 5.4(c)(i) below). Each Stockholder shallThe Company and its subsidiaries will immediately cease, and shall will cause its respective representatives toRepresentatives to immediately cease, immediately cease and be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesAcquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Tanox Inc), Merger Agreement (Genentech Inc)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (a) From and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termspursuant to Article VII, each Stockholder the Company shall not, and it shall cause its respective Subsidiaries and its officers, directors and employees, and it shall use its reasonable best efforts to cause the investment bankers, attorneys, agents and representatives of the Company or any of its Subsidiaries not to, directly or indirectly, (i) solicit, initiate, propose initiate or knowingly take any action knowingly to facilitate or encourage (including by way of furnishing non-public information) the making, submission or announcement of any Takeover Acquisition Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose or furnish any non-public nonpublic information relating to the Company or any of its Subsidiaries to, or afford any access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate, encourage, facilitate or knowingly assist encourage any effort by, any third party Third Party that could has made or, to the knowledge of the Company, is seeking to make, an Acquisition Proposal. Without limiting the generality of the foregoing, it is understood that any violation of any of the restrictions set forth in this Section 5.4(a) by any officer, director or employee of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.4(a) by the Company. Notwithstanding the foregoing, prior to the receipt of the Stockholder Approval, the Company or its board of directors, directly or indirectly through advisors, agents or other intermediaries, may furnish information concerning the businesses, properties or assets of the Company or any of its Subsidiaries to any Person or group, including furnishing nonpublic information pursuant to an executed confidentiality agreement, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and may engage in discussions and negotiations with such Person or group concerning an acquisition only if: (A) such Person or group has submitted an unsolicited bona fide Acquisition Proposal which the board of directors of the Company determines in good faith is, or is reasonably likely to result in, a Superior Proposal, (B) the board of directors of the Company determines in good faith, after consultation with outside counsel, that the failure to take such action would reasonably be expected to makeresult in a breach of its fiduciary duties and (C) the Company promptly provides to Parent any material nonpublic information provided to such Person or group if such information has not been previously provided to Parent. The Company shall instruct its investment bankers, attorney, agents and other representatives that such Persons are not authorized to, and are instructed not to, take any action prohibited by this Section 5.4(a).
(b) The Company shall promptly (and in any event within 48 hours, but in any event prior to the same time on the next Business Day) notify Parent of any Acquisition Proposal, any material modifications thereto or any request for non-public information relating to the Company or its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Third Party that, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any Takeover such Acquisition Proposal or request. The Company shall keep Parent informed on a reasonably current basis of the status and details of any such Acquisition Proposal or request, and shall promptly (iiiand in any event within 48 hours, but in any event prior to the same time on the next Business Day) enter into, approve or recommend any understanding, agreement in principle, letter provide to Parent a copy of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit all written materials subsequently provided to or agree to facilitate any of by the foregoing. Each Stockholder Company in connection with such Acquisition Proposal or request.
(c) The Company shall, and shall cause its respective Subsidiaries and the officers, directors, employees, investment bankers, attorneys, agents and representatives of the Company and any of its Subsidiaries to, immediately cease and cause to be terminated any and all existing discussions or negotiations negotiations, if any, with any Person (other than Parent) Third Party conducted theretofore prior to the date hereof with respect to any Takeover Proposal Acquisition Proposal, shall terminate any access of any such Third Party to any nonpublic information and shall request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential any nonpublic information previously furnished provided to any such Person Third Party in connection with any such activities, discussions or negotiations.
(d) Except as set forth in this Section 5.4(d), the board of directors of the Company shall not (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation by the board of directors of the Company of this Agreement or the transactions contemplated hereby, including the Merger, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other agreement with respect to any Acquisition Proposal (subject to Section 7.1(d)(1)). Notwithstanding the foregoing, the board of directors of the Company shall be permitted to (x) take the actions described in clause (i) or (ii) of this Section 5.4(d) if (A) the Company has complied with this Section 5.4, (B) if any such actions are taken in response to an Acquisition Proposal (and only in such cases), the board of directors of the Company determines in good faith, after consultation with its independent financial advisors, that such Acquisition Proposal constitutes a Superior Proposal, (C) the board of directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would result in a breach of its fiduciary duties to the Company’s stockholders under applicable Law (taking into consideration any proposal by Parent to amend the terms of this Agreement), and (D) the Company has provided Parent prior written notice of its intent to take any such action at least three Business Days prior to taking such action, or (y) enter into an agreement relating to an Acquisition Proposal that constitutes a Superior Proposal upon termination of this Agreement in accordance with Section 7.1(d)(i) and concurrent payment of the Termination Fee pursuant to section 7.2(a)(iii).
(e) Nothing contained in this Section 5.4 shall prohibit the Company or its representativesboard of directors, directly or indirectly through advisors, agents or other intermediaries, from taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or making any disclosure or recommendation to the Company’s stockholders if, after consultation with outside legal counsel, the board of directors determines in good faith that failure to take such action would result in a breach of its fiduciary duties to the Company’s stockholders or violate applicable law.
Appears in 2 contracts
Sources: Merger Agreement (Herbst Gaming Inc), Merger Agreement (Sands Regent)
No Solicitation. (a) Except to the extent the Company would be as expressly permitted under by Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith8.3(b), from and after the date of this Agreement until the earlier of the Effective Time oror the date, if earlierany, on which this Agreement is terminated pursuant to Section 10.1 and except as otherwise provided for in this Agreement, the termination of this Agreement in accordance with its terms, each Stockholder Company shall not, and shall cause its Subsidiaries not to, and shall direct its and their respective representatives Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, propose initiate or knowingly take any action to facilitate or encourage any Competing Proposal, (including by way of furnishing ii) participate in any negotiations regarding, or furnish to any Person any material non-public information) the submission of information with respect to, any Takeover Competing Proposal or the making of any inquiry or proposal that constitutes, or could would reasonably be expected to lead toto a Competing Proposal, (iii) engage in discussions with any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in Person with respect to any discussions or negotiations with, disclose any non-public information relating to the Company Competing Proposal or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books inquiry or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party proposal that could would reasonably be expected to makelead to a Competing Proposal, or has made, any Takeover Proposal or (iiiiv) enter into, approve or recommend any Competing Proposal, (v) adopt, enter into, or propose publicly to adopt or enter into, any letter of intent, memorandum of understanding, agreement in principle, letter of intent, term sheetmerger agreement, acquisition agreement, merger agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar Contract relating to any Takeover ProposalCompeting Proposal or (vi) terminate, waive, amend or modify any provision of, or agree grant permission under, any standstill, confidentiality agreement or commit similar Contract to which the Company or agree to facilitate any of its Subsidiaries is a party; provided, however, that the foregoingCompany or its Subsidiaries may waive, if requested by the applicable counterparty, rights under any standstill, confidentiality agreement or similar Contract to which the Company or any of its Subsidiaries is a party to the extent necessary to enable such counterparty to make a Competing Proposal. Each Stockholder The Company shall, and shall cause its Subsidiaries and its and their respective representatives Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore prior to the execution of this Agreement with respect to any Takeover Proposal and Competing Proposal, request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to any such Person or its representativesRepresentatives and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Subject to Section 8.3(b), neither the Company Board nor any committee thereof shall directly or indirectly (i) withdraw (or change, amend, modify or qualify in any manner adverse to Parent or Merger Sub), or publicly propose to withdraw (or change, amend, modify or qualify in a manner adverse to Parent or Merger Sub), the Company Recommendation, (ii) approve, adopt or recommend, or publicly propose to approve or recommend, a Competing Proposal, (iii) fail to announce publicly, within ten Business Days after a tender offer or exchange offer relating to the Shares (other than the Offer) has been commenced, that the Company Board recommends rejection of such tender or exchange offer, or (iv) take any other action or make any other proposal or public statement inconsistent with the Company Recommendation (any action described in clauses (i) through (iv) being referred to as a “Change of Recommendation”).
(b) Notwithstanding the limitations set forth in Section 8.3(a), if at any time after the date of this Agreement and prior to the Offer Closing, the Company receives a Competing Proposal that the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) constitutes or would reasonably be expected to result in a Superior Proposal, and which Competing Proposal did not result from a breach of Section 8.3(a), then the Company may, subject to compliance with this Section 8.3 in all material respects, (i) furnish non-public information to the third party making such Competing Proposal or (ii) engage in discussions or negotiations with the third party with respect to the Competing Proposal, in each case if, and only if, (x) the Company provides notice to Parent of its intent to furnish information to or enter into discussions with such person in accordance with this Section 8.3(b), (y) the Company enters into a confidentiality agreement with such Person that contains confidentiality and standstill provisions that are determined in good faith by the Company to be no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such Person or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) (any such agreement, an “Acceptable Confidentiality Agreement”), and the Company promptly thereafter (but in any event within 24 hours) provides to Parent a copy of any such Acceptable Confidentiality Agreement, and (z) the Company provides to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to such Person (or its Representatives) to the extent such information has not previously been provided to Parent prior to or substantially concurrent with the time it is provided to such Person (or its Representatives).
(c) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Offer Closing, the Company Board may, if the Company receives a Competing Proposal after the execution of this Agreement that did not result from a breach of Section 8.3(a) and that the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) would, if consummated, constitute a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement that have been offered in writing by Parent in accordance with this Section 8.3(c), (i) effect a Change of Recommendation or (ii) terminate this Agreement in accordance with Section 10.1(g) to enter into a definitive agreement with respect to such Superior Proposal, in each case only if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company Board may not effect a Change of Recommendation pursuant to the foregoing clause (i) or terminate this Agreement pursuant to the foregoing clause (ii) unless (A) the Company shall have provided prior written notice (a “Company Notice”) to Parent, at least three Business Days in advance of such Change of Recommendation or such termination, of its intention to effect a Change of Recommendation in response to such Superior Proposal or terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, which Company Notice shall specify (1) the identity of the party making such Superior Proposal, (2) the material terms and conditions of such Superior Proposal and (3) a copy of the most current version of any proposed definitive agreement(s) with respect to such Superior Proposal and (B) at or after 5:00 p.m., New York City time, on the third Business Day following the day on which Parent and Merger Sub receive the Company Notice (it being understood that for purposes of calculating such three Business Days, the first Business Day will be the first Business Day after the date of such receipt), the Company reaffirms in good faith (after consultation with its outside counsel and financial advisor) that (1) such Competing Proposal continues to constitute a Superior Proposal and (2) the failure to make a Change of Recommendation as a result thereof would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any change in the consideration payable with respect thereto or any other material amendment to the terms and conditions of such Superior Proposal shall require a new Company Notice and a new two Business Day period (which two Business Day period shall be calculated in the same manner as the initial three Business Day period)). In determining whether to make a Change of Recommendation or terminate this Agreement in accordance with Section 10.1(g) and this Section 8.3(c), the Company Board will take into account any changes to the terms of this Agreement as may be proposed in writing by Parent by 5:00 p.m., New York City time, on the last Business Day of the applicable three Business Day period or two Business Day period, as applicable, in response to a Company Notice, and if requested by Parent, the Company shall, and shall cause its Representatives to, engage in good faith negotiations with Parent and its Representatives regarding any adjustments in the terms and conditions of this Agreement proposed by Parent in response to a Company Notice.
(d) The Company will (i) keep Parent reasonably informed in all material respects and on a reasonably current basis of the status and developments (including any material change to the terms thereof) of any Competing Proposal and (ii) provide to Parent within 24 hours after receipt or delivery thereof all drafts of agreements relating to any Competing Proposal and any written proposals containing any material terms of a Competing Proposal or a counterproposal to a Competing Proposal, in each case exchanged between any of the Company or any of its Subsidiaries or any of its or their Representatives, on the one hand, and the Person making any such Competing Proposal or any of its Affiliates or any of their Representatives, on the other hand. No notice or communication made by the Company to Parent pursuant to this Section 8.3(d) will be deemed to be a Company Notice unless such notice or communication complies with the provisions of Section 8.3(c).
(e) As used in this Agreement,
(i) the term “Competing Proposal” means any written bona fide proposal made by a third party (other than Parent or Merger Sub or any of their respective Subsidiaries) relating to any direct or indirect (A) acquisition, purchase, sale, license, lease, contribution or disposition, directly or indirectly (including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture, sale of capital stock of or other equity interests in a Subsidiary of the Company or otherwise) to such Person or group of Persons (or Affiliates thereof) of any business or assets of the Company or its Subsidiaries representing or generating 15% or more of the consolidated revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (B) issuance, sale or other disposition to such Person or group of Persons (or Affiliates thereof) of securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing 15% or more of the combined voting power of the Shares, (C) any tender offer or exchange offer that if consummated would result in any Person beneficially owning 15% or more of the combined voting power of the Shares, (D) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries in which the other party thereto or its shareholders will own 15% or more of the combined voting power of the parent entity resulting from any such transaction or (E) combination of the foregoing, in each case other than Transactions; and
Appears in 2 contracts
Sources: Merger Agreement (Pep Boys Manny Moe & Jack), Merger Agreement (Icahn Enterprises Holdings L.P.)
No Solicitation. (a) Except to the extent as otherwise expressly permitted by this Section 5.3, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time shall not (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewithshall cause each of its Subsidiaries not to), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause not authorize or permit any Representative of the Company or any of its respective representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, propose solicit or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of or take any Takeover Proposal other action to facilitate any inquiries or the making of any proposal that constitutesrelating to, or that could reasonably be expected to lead to, any Takeover Proposal; an Alternative Transaction, (ii) conduct, continue, engage in, solicit, or otherwise participate in any enter into discussions or negotiations with, disclose negotiate with (or provide any non-public information relating to the Company or any of its Subsidiaries to, otherwise afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries Subsidiaries) any Person in connection with any proposal relating to an Alternative Transaction, (iii) agree to or enter into any letter of intent or similar agreement in principle or other Contract with respect to, or participate inapprove or recommend or otherwise endorse or support, facilitateany proposal relating to an Alternative Transaction or (iv) grant any waiver or release under any standstill or similar agreement to which the Company is a party (including any agreement entered into in connection with the solicitation of proposals by UBS Investment Bank) to any Person. Upon execution of this Agreement, encouragethe Company shall, and shall cause its Subsidiaries and their respective Representatives to cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person conducted heretofore with respect to, or knowingly assist any effort by, any third party that could reasonably be expected to makelead to, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract a proposal relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and an Alternative Transaction.
(b) The Company shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and promptly request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to any Third Party relating to an Alternative Transaction be returned or destroyed in accordance with the confidentiality agreement entered into with such Third Party and shall deny access to any data room (virtual or actual) containing any such information to any such Third Party.
(c) The Company shall promptly notify Buyer orally and in writing of all material terms of any proposals received by the Company or by any of its Subsidiaries or their respective Representatives relating to any Alternative Transaction, any material changes thereto, or any other requests for information, discussions or negotiations relating thereto, specifying, in each case, the material terms and conditions thereof and the identity of the party making such inquiry, proposal or request.
(d) The Company shall notify its Representatives of the restrictions described in this Section 5.3. The Company agrees that it shall use reasonable best efforts to ensure that any Representative of the Company or any of its Subsidiaries do not violate any of the restrictions set forth in this Section 5.3.
(e) At any time prior to the receipt of the Requisite Stockholder Vote, nothing contained in this Agreement shall prohibit the Board of Directors of the Company, the Company, and each of its Representatives from furnishing information to, entering into a confidentiality agreement with, or entering into discussions or negotiations with, any Person in connection with an unsolicited written bona fide proposal by such Person relating to an Alternative Transaction received after the date hereof if, and only if prior to taking such action, (A) the Board of Directors of the Company determines that such proposal constitutes or could reasonably be expected to lead to a Superior Proposal, (B) the Board of Directors of the Company, after consultation with the Company’s outside legal counsel determines in good faith that such action is necessary for the Company’s Board of Directors to comply with its fiduciary duties to the Company’s stockholders, (C) the receipt of such proposal did not result from a breach of this Section 5.3; provided that 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 promptly provides Buyer any non-public information concerning the Company or any of its Subsidiaries that is provided to such Person making such proposal or its representativesRepresentatives which was not previously provided to any of the Buyer Parties, and (2) the Company receives from such Person an executed confidentiality agreement with terms that are comparable to and no less restrictive than those set forth in the Confidentiality Agreement.
(f) 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(a) 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, after consultation with its outside legal counsel, is required by Applicable Law; or (ii) prohibit or restrict the Board of Directors of the Company from amending, modifying or withdrawing the Company Board Recommendation (any such action, a “Change in Recommendation”), to the extent that the Company’s Board of Directors determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary duties to the Company’s stockholders.
(g) Neither the Board of Directors of the Company nor any committee thereof shall (i) approve, nor shall the Company enter into, any letter of intent, agreement in principle, acquisition agreement or similar Contract relating to any Alternative Transaction or (ii) approve or recommend or publicly propose to approve or recommend any Alternative Transaction. Notwithstanding the foregoing, if, prior to receipt of the Requisite Stockholder Vote, the Board of the Directors of the Company determines in good faith, after consultation with its outside legal counsel and financial advisor, that a Superior Proposal has been made, the Board of Directors of the Company may, subject to compliance with the provisions of this Section 5.3(g), (x) approve or recommend such Superior Proposal, (y) cause the Company to enter into a binding definitive agreement with respect to, and containing the terms of, such Superior Proposal (a “Superior Proposal Agreement”) and (z) terminate this Agreement in accordance with Section 8.1(f); provided, however, that prior to taking any such action (A) the Company shall have delivered to Buyer at least five (5) Business Days’ prior notice of its intention to terminate this Agreement in accordance with Section 8.1(f) (which notice shall contain the material terms and conditions of such Superior Proposal, including the identity of the party making such proposal), it being understood that any amendment to the financial or other material terms of such Superior Proposal shall require a new five (5) Business Day period to afford Buyer the opportunity to negotiate as contemplated below; (B) during such five (5) Business Day period the Company shall have cooperated and negotiated with Buyer (to the extent Buyer wishes such cooperation) to enable Buyer to make such adjustments in the terms and conditions of this Agreement such that it is able to make a Superior Offer if it wishes to do so; and (C) after taking into account any revised proposal that may be made by Buyer since receipt of the notice described above, the Company’s Board of Directors shall have determined in good faith, after consultation with its outside legal counsel and financial advisor, that Buyer has not made a Superior Offer on or prior to the expiration of such five (5) Business Day period, then, and only then, the Company’s Board of Directors may enter into a Superior Proposal Agreement and concurrently terminate this Agreement pursuant to Section 8.1(f).
(h) Nothing contained in this Agreement shall prohibit the Company from filing with the SEC a current report on Form 8-K to report the execution of this Agreement and file a copy of this Agreement and any ancillary agreement as exhibits to such a report.
Appears in 2 contracts
Sources: Merger Agreement (Adesa California, LLC), Merger Agreement (Adesa Inc)
No Solicitation. Except to the extent the Company would be as otherwise expressly permitted under Section 6.04 5.09 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith)Agreement, from and after the date of this Agreement hereof until the Effective Time or, if earlier, the termination of this Agreement pursuant to Section 7 hereof, Shareholder, in accordance with his, her or its termscapacity as a shareholder of Company, each Stockholder shall not, and nor shall cause such Shareholder authorize any partner, officer, director, advisor or representative of, such Shareholder or any of his, her or its respective affiliates to (and, to the extent applicable to Shareholder, such Shareholder shall use commercially reasonable efforts to prohibit any of his, her or its representatives not or affiliates to, directly or indirectly), (ia) initiate, solicit, initiateinduce or knowingly encourage, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of of, any inquiry, offer or proposal that which constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; , (iib) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations withregarding any Acquisition Proposal, disclose or furnish, or otherwise afford access, to any non-public person (other than Buyer) any information or data with respect to Company or otherwise relating to the Company or any of its Subsidiaries toan Acquisition Proposal, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iiic) enter into, approve or recommend into any understandingagreement, agreement in principle, letter of intent, term sheetmemorandum of understanding or similar arrangement with respect to an Acquisition Proposal, acquisition agreement(d) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to an Acquisition Proposal (other than the Merger Agreement) or otherwise encourage or assist any party in taking or planning any action that would compete with, merger agreementrestrain or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, option agreement, joint venture agreement, partnership agreement (e) initiate a shareholders’ vote or other Contract relating action by consent of Company’s shareholders with respect to any Takeover an Acquisition Proposal, or agree or commit to or agree to facilitate any (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than ParentExchange Act) conducted theretofore with respect to any Takeover voting securities of Company that takes any action in support of an Acquisition Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder (other than the prompt return or destruction of all confidential information previously furnished to such Person or its representativesMerger Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Independent Bank Corp), Merger Agreement (Central Bancorp Inc /Ma/)
No Solicitation. Except (a) Immediately upon execution of this Agreement, the Company shall (and shall cause its officers, directors, employees, investment bankers, attorneys and other agents or representatives to) cease all discussions, negotiations, responses to inquiries (except as set forth in the proviso to this sentence) and other communications relating to any potential business combination with all third parties who, prior to the extent date hereof, may have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal (as hereinafter defined) with the Company; PROVIDED that, if any such inquiries are made after the date hereof, the Company would be permitted under Section 6.04 of the Merger Agreement shall respond by stating that it is a party to take a binding agreement with Parent and is prohibited thereby from further responding to such actions at the applicable time inquiries.
(and subject b) Prior to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with pursuant to Article VII hereof, the Company and its terms, each Stockholder Subsidiaries shall not, and nor shall cause its respective representatives not tothe Company authorize or permit any officers, directly directors or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutesemployees of, or could reasonably be expected to lead toany investment bankers, any Takeover Proposal; (ii) conductattorneys or other agents or representatives retained by or acting on behalf of, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access (i) initiate, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, (ii) except as permitted below, engage or participate in negotiations or discussions with, or furnish any information or data to, or take any other action to, facilitate any inquiries or making any proposal by, any third party relating to an Acquisition Proposal, or (iii) except as permitted below, enter into any agreement with respect to any Acquisition Proposal or approve an Acquisition Proposal. Notwithstanding anything to the businesscontrary contained in this Section 5.6 or in any other provision of this Agreement, propertiesprior to the Company Stockholders Meeting, assetsthe Company Board may participate in discussions or negotiations with or furnish information to any third party making an unsolicited Acquisition Proposal (a "POTENTIAL ACQUIROR") or approve or recommend an unsolicited Acquisition Proposal if both (A) a majority of the directors of the Company Board, personnelwithout including directors who may be considered Affiliates (as defined in Rule 405 under the Securities Act) of any person making an Acquisition Proposal ("DISINTERESTED DIRECTORS") determines in good faith, books after receiving advice from its independent financial advisor, that a Potential Acquiror has submitted to the Company an Acquisition Proposal that is a Superior Proposal (as hereinafter defined), and (B) a majority of the disinterested directors of the Company Board determines in good faith, after receiving advice from reputable outside legal counsel experienced in such matters (and the parties hereto agree that the law firm of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ is so experienced), that the failure to participate in such discussions or records negotiations or to furnish such information or to approve or recommend such unsolicited Acquisition Proposal is inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall receive any Acquisition Proposal, it shall promptly (and in no event later than 24 hours after receipt thereof) furnish to Parent the identity of the recipient of the Acquisition Proposal and of the Potential Acquiror, the terms of such Acquisition Proposal, copies of all information requested by the Potential Acquiror, and shall further promptly inform Parent in writing as to the fact such information is to be provided after compliance with the terms of the preceding sentence. Nothing contained herein shall prevent the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the Company Board, after receiving advice from reputable outside legal counsel experienced in such matters (and the parties hereto agree that the law firm of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ is so experienced), such disclosure is required by applicable law. Without limiting the foregoing, the Company understands and agrees that any violation of the restrictions set forth in this Section 5.6(b) by the Company or any of its Subsidiaries, or by any director or officer of the Company or any of its Subsidiaries toor any financial advisor, attorney or other advisor or 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 deemed to be a breach of this Section 5.6(b) sufficient to enable Parent to terminate this Agreement pursuant to Section 7.1(d)(i) hereof.
(c) For the purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any proposal, whether in writing or otherwise, made by any person other than Parent and its Subsidiaries to acquire "beneficial ownership" (as defined under Rule 13(d) of the Exchange Act) of 20% or more of the assets of, or participate in, facilitate, encourage, 20% or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter more of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate the outstanding capital stock of any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person Company or its representativesSubsidiaries pursuant to a merger, consolidation, exchange of shares or other business combination, sale of shares of capital stock, sales of assets, tender offer or exchange offer or similar transaction involving the Company or its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Adc Telecommunications Inc), Merger Agreement (Adc Telecommunications Inc)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from a) From the date of this Agreement until the first to occur of the Effective Time or, if earlier, and the termination of this Agreement in accordance with its termsArticle 9, each Stockholder except as specifically permitted in Section 5.2(c), Section 5.2(e) or Section 5.2(f)(ii), the Company shall not, and nor shall cause its respective representatives not it authorize or permit any of the Company Subsidiaries or the Company Representatives to, directly or indirectly, : (i) solicit, initiate, propose initiate or knowingly take encourage any action to facilitate inquiries, offers or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal proposals that constitutesconstitute, or could are reasonably be expected likely to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, furnish or disclose any non-public information or data relating to the Company or any of its the Company Subsidiaries to, afford or in response to a request therefor, give access to the business, properties, assetsassets or the books and records of the Company or the Company Subsidiaries to, personnelany Person that has made or, to the knowledge of the Company, may be considering making any Acquisition Proposal or otherwise in connection with an Acquisition Proposal; (iii) grant any waiver or release under any standstill or similar contract with respect to any Company Common Stock or any properties or assets of the Company or the Company Subsidiaries; (iv) approve, endorse or recommend any Acquisition Proposal; (v) enter into any agreement in principle, arrangement, understanding or contract relating to any Acquisition Proposal; or (vi) take any action to exempt or make not subject to any state takeover statute or state Law that purports to limit or restrict Business Combinations or the ability to acquire or vote shares, any Person (other than Parent and the Parent Subsidiaries) or any action taken thereby, which Person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom.
(b) Except as specifically permitted in Section 5.2(c) and Section 5.2(d), the Company shall, and shall cause each of the Company Subsidiaries and instruct the Company Representatives to, immediately cease any existing solicitations, discussions, negotiations or other activity with any Person being conducted with respect to any Acquisition Proposal on the date hereof. The Company shall promptly inform the Company Representatives who have been engaged or are otherwise providing assistance in connection with the transactions contemplated by this Agreement of the Company’s obligations under this Section 5.2.
(c) Notwithstanding anything in this Section 5.2 or elsewhere in this Agreement to the contrary, prior to obtaining the Required Company Vote, nothing in this Agreement shall prevent the Company or its Board of Directors from:
(i) after the date of this Agreement, engaging in discussions or negotiations with, or furnishing or disclosing any information or data relating to, the Company or any of the Company Subsidiaries or, in response to a request therefor, giving access to the properties, assets or the books or and records of the Company or any of its the Company Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party Person who has made a bona fide written and unsolicited Acquisition Proposal after the date hereof if the Company’s Board of Directors determines that could such Acquisition Proposal is reasonably be expected likely to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement result in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover a Superior Proposal, or agree or commit but only so long as (x) the Company’s Board of Directors has acted in good faith and determined (A) after consultation with its financial advisors, that such Acquisition Proposal is reasonably likely to or agree result in a Superior Proposal and (B) after consultation with its outside legal counsel, that the failure to facilitate any take such action is reasonably likely to result in a breach of its fiduciary obligations to the Company and the stockholders of the foregoing. Each Stockholder shall, Company under applicable Laws; and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parenty) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed the Company (A) enters into a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished Person on terms and conditions no more favorable to such Person than those contained in the Confidentiality Agreement and (B) has previously disclosed or concurrently discloses or makes available the same information to Parent as it makes available to such Person in accordance with Section 5.2(d); and
(ii) subject to compliance with Section 5.2(c)(i), entering into a definitive agreement with respect to a Superior Proposal (and taking any action under any state takeover Law in connection with such Superior Proposal), but only so long as the Company’s Board of Directors, acting in good faith has (I) approved such definitive agreement, (II) determined, after consultation with its representativesfinancial advisors, that such bona fide written and unsolicited Acquisition Proposal constitutes a Superior Proposal, and (III) determined, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the Company and the stockholders of the Company under applicable Laws, and (B) the Company terminates this Agreement pursuant to, and after complying with all of the provisions of, Sections 9.1(g) and 9.2(b).
(d) If the Company or any of the Company Subsidiaries or the Company Representatives receives a request for information from a Person who has made an unsolicited bona fide written Acquisition Proposal involving the Company and the Company is permitted to provide such Person with information pursuant to this Section 5.2, the Company will provide to Parent a copy of the confidentiality agreement with such Person promptly upon its execution and provide to Parent a list of, and copies of, the information provided to such Person concurrently with its delivery to such Person and promptly provide Parent with access to all information to which such Person was provided access, in each case only to the extent not previously provided to Parent.
(e) The Board of Directors of the Company shall not (i) approve, endorse or recommend, or propose to approve, endorse or recommend, any Superior Proposal or (ii) enter into any agreement in principle or understanding or a contract relating to a Superior Proposal, unless the Company terminates this Agreement pursuant to, and after complying with all of the provisions of, Sections 9.1(g) and 9.2(b).
(f) Notwithstanding anything to the contrary in this Section 5.2 or elsewhere in this Agreement, (i) the Board of Directors of the Company shall be permitted to disclose to the stockholders of the Company a position with respect to an Acquisition Proposal required by Rule 14e-2(a), Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, (ii) the Board of Directors of the Company may withdraw, modify or amend its recommendation of the Merger and this Agreement by the Board of Directors of the Company at any time if it determines, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the Company and the stockholders of the Company under applicable Laws, and (iii) the Board of Directors of the Company may take any action described in Section 5.2(a)(iii) or (vi) if it determines, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the Company and the stockholders of the Company under applicable Laws.
Appears in 2 contracts
Sources: Merger Agreement (Double Eagle Petroleum Co), Merger Agreement (Petrosearch Energy Corp)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from a) From the date of this Agreement until the earlier of the Effective Time or, if earlier, or the termination of date on which this Agreement is terminated in accordance with its termsthe terms of this Agreement, each Stockholder the Company shall not, and nor shall cause it permit any of its respective representatives not Subsidiaries to, nor shall it authorize or knowingly permit any officer, director or employee of or any financial advisor, attorney or other advisor or representative (“Representatives”) of, the Company or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate, propose initiate or knowingly facilitate, induce or encourage the submission of, any Alternative Proposal (as hereinafter defined); (ii) enter into any letter of intent or agreement in principle or any agreement providing for, relating to or in connection with, any Alternative Proposal; (iii) approve, endorse or recommend any Alternative Proposal or (iv) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party any information with respect to, or take any other action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutesconstitutes any Alternative Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 4.3(a) by any of the Company or its Subsidiaries or their respective directors, officers, employees or Representatives shall be deemed to be a breach of this Section 4.3(a) by the Company. The Company will, and will cause each of its Subsidiaries and each of the directors, officers, employees and Representatives of the Company and its Subsidiaries to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Alternative Proposal. The Company agrees that it will take the necessary steps to promptly inform its directors, officers, employees and Representatives of the obligations undertaken in this Section 4.3.
(b) Notwithstanding anything to the contrary contained in Section 4.3(a) or elsewhere in this Agreement, in the event that the Company receives after the date of this Agreement and prior to obtaining the Company Stockholder Approval, an unsolicited, bona fide Alternative Proposal that the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation) would be, or could would be reasonably likely to lead to, a Superior Proposal, the Company may, in response to such Alternative Proposal, subject to compliance with this Section 4.3 and receiving from such Person an executed confidentiality agreement containing terms not materially less favorable to the Company than the terms of the Confidentiality Agreement, then take the following actions:
(i) furnish any information with respect to the Company and its Subsidiaries to the Person or group (and their respective Representatives) making such Alternative Proposal; provided, that within one (1) Business Day of furnishing any such information to such Person or group, it furnishes such information to Parent; and
(ii) engage in discussions or negotiations with such Person or group (and their respective Representatives) with respect to such Alternative Proposal. The Company agrees that it and its Subsidiaries shall not enter into any confidentiality agreement with any person subsequent to the date of this Agreement that prohibits the Company from providing information to Parent that is required to be provided under this Section 4.3.
(c) In addition to the obligations of the Company set forth in Sections 4.3(a), 4.3(b) and 4.3(d), as promptly as practicable (and in any event within one (1) Business Day) after receipt of any Alternative Proposal or any request for nonpublic information or any inquiry relating in any way to, or that would reasonably be expected to lead to, any Takeover Alternative Proposal; , the Company shall provide Parent with written notice of the material terms and conditions of such Alternative Proposal, request or inquiry (to the extent not previously provided to Parent), and the identity of the Person or group making any such Alternative Proposal, request or inquiry and a copy of all written materials provided to it in connection with such Alternative Proposal, request or inquiry. In addition, the Company shall provide Parent as promptly as practicable (and in any event within one (1) Business Day) with all information as is reasonably necessary to keep Parent reasonably informed of all material oral or written communications regarding, and the status and changes to the economic or other material terms of, any such Alternative Proposal, request or inquiry, and shall provide, as promptly as reasonably practicable, to Parent a copy of all material written materials (including material written materials provided by email or otherwise in electronic format) provided by or to the Company, any of its Subsidiaries or any of their Representatives in connection with such Alternative Proposal, request or inquiry.
(d) Neither the Board of Directors of the Company nor any committee thereof shall, directly or indirectly, (i) (A) withhold, withdraw, qualify, amend or modify (in each case, in a manner adverse to Parent) or publicly propose to withhold, withdraw, qualify, amend or modify (in each case, in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board of Directors or any committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement, or (B) recommend, adopt or approve, or publicly propose to recommend, adopt or approve, any Alternative Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) conductapprove, continue, engage in, solicitadopt or recommend, or otherwise participate in any discussions publicly propose to approve, adopt or negotiations withrecommend, disclose any non-public information relating to or allow the Company or any of its Subsidiaries to, afford access Affiliates to the business, properties, assets, personnel, books execute or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any letter of intent, memorandum of understanding, agreement in principle, letter of intent, term sheetmerger agreement, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract similar agreement, arrangement or understanding or any tender offer (A) constituting, or relating to, any Alternative Proposal or (B) requiring it (or that would require it) to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Section 4.3(d) or in any other provision of this Agreement, the Board of Directors of the Company may, solely in response to a Superior Proposal made after the date of this Agreement and that did not otherwise result from a breach of this Section 4.3, terminate this Agreement pursuant to Section 7.1(f) and concurrently enter into a definitive agreement with respect to such Superior Proposal if all of the following conditions in clauses (i) through (v) are met, as applicable:
(i) such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal;
(ii) the Company Stockholder Approval has not been obtained;
(iii) the Company has (A) provided to Parent three (3) Business Days’ prior written notice which shall state expressly (1) that it has received a Superior Proposal, (2) the material terms and conditions of the Superior Proposal (including the per share value of the consideration offered therein and the identity of the Person or group of Persons making the Superior Proposal), and shall have provided a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Proposal and other material documents, including the definitive agreement with respect to such Superior Proposal (the “Alternative Transaction Agreement”) (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 and a new three (3) Business Day period) and (3) that it intends to terminate this Agreement, and the manner in which it intends to do so, and (B) prior to terminating this Agreement, to the extent requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that the transaction contemplated by the Alternative Transaction Agreement ceases to constitute a Superior Proposal;
(iv) the Company shall have complied in all material respects with this Section 4.3; and
(v) the Company pays all fees and expenses as required pursuant to Section 7.3.
(e) Notwithstanding anything to the contrary set forth in any provision of this Agreement, prior to receipt of the Company Stockholder Approval, the Board of Directors of the Company (or a committee thereof) may, other than in circumstances involving or relating to a Superior Proposal but only in response to an Intervening Event and provided that the Company and its Subsidiaries have complied in all material respects with this Section 4.3, effect a Company Adverse Recommendation Change if the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel) that, in light of such Intervening Event, failure to take such action would reasonably be expected to constitute a breach of the directors’ fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that neither the Board of Directors of the Company nor any Takeover Proposal, or agree or commit to or agree to facilitate committee thereof shall take any of the foregoing. Each actions set forth in this Section 4.3(e) unless the Company has first complied with the provisions of Section 4.3(d)(iii), treating the occurrence of such Intervening Event as if a Superior Proposal had been received and after so complying, the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that, in light of such Intervening Event, failure to make a Company Adverse Recommendation Change would constitute a breach of the directors’ fiduciary obligations to the Company’s stockholders under applicable Law.
(f) Notwithstanding anything to the contrary in Section 4.3(a), prior to the Company Stockholder shallMeeting, and nothing contained in this Agreement shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder prevent the prompt return or destruction of all confidential information previously furnished to such Person Company or its representativesBoard of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or publicly disclosing the existence of a Alternative Proposal to the extent the Board of Directors of the Company determines in good faith (after consultation with its outside counsel) that the failure to make such disclosure would reasonably be expected to constitute a breach of its fiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Churchill Downs Inc), Merger Agreement (Youbet Com Inc)
No Solicitation. (a) Except to the extent as provided in this Section 5.2(a), the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause not permit or authorize any of its respective representatives not toSubsidiaries or any director, officer, employee, investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries, directly or indirectly, to (i) solicit, initiate, propose endorse, or knowingly take encourage or facilitate any action to facilitate inquiry, proposal or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal offer with respect to, or the making of or completion of, any proposal that constitutesAcquisition Proposal, or could any inquiry, proposal or offer that is reasonably be expected likely to lead toto any Acquisition Proposal, any Takeover Proposal; (ii) conductenter into, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations withregarding, disclose or furnish to any Person any non-public information relating or data with respect to, or otherwise cooperate in any way with, any Acquisition Proposal, (iii) subject to Section 5.2(b), approve, recommend, agree to or accept, or publicly propose to approve, recommend, agree to or accept, any Acquisition Proposal or (iv) resolve, publicly propose or agree to do any of the foregoing. The Company shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its Subsidiaries to, (A) immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, (B) request and confirm the prompt return or destruction of all confidential information previously furnished with respect to any Acquisition Proposal and (C) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries toAffiliates or Representatives is a party with respect to any Acquisition Proposal, afford access and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Stockholder Approval, (1) the Company receives a written Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 5.2, (3) the Company Board determines in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal and (4) the Company Board determines in good faith (and after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to constitute a breach of its fiduciary duties to the business, properties, assets, personnel, books or records stockholders of the Company under applicable Law, then the Company may (x) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal; provided that prior to furnishing any such information the Company shall have first received from the Person making such Acquisition Proposal an executed confidentiality agreement containing terms substantially similar to, and not materially less favorable to the Company than, those set forth in the Confidentiality Agreement (as defined below); provided that any non-public information provided to any Person given such access shall have been previously provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such Person and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal or take the actions specified in clause (C) of the preceding sentence.
(b) Except as provided in this Section 5.2(b), neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Parent or Merger Sub) the approval, recommendation or declaration of advisability by the Company Board or any such committee of this Agreement, the Merger or any of its Subsidiaries tothe other transactions contemplated hereby, (B) adopt, approve, recommend, endorse or participate inotherwise declare advisable the adoption of any Acquisition Proposal, facilitate(C) resolve, encourage, agree or knowingly assist publicly propose to take any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal such actions or (iiiD) submit this Agreement to its stockholders without recommendation (each such action set forth in this Section 5.2(b)(i) being referred to herein as an “Adverse Recommendation Change”) or (ii) (A) cause or permit the Company to enter intointo any letter of intent, approve or recommend any memorandum of understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating (other than a confidentiality agreement pursuant to and consistent with the terms of Section 5.2(a)) (each, an “Alternative Acquisition Agreement”) constituting or related to, or which is intended to or is reasonably likely to lead to, any Takeover Acquisition Proposal or (B) resolve, agree or publicly propose to take any such actions. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Stockholder Approval, (1) the Company receives a written Acquisition Proposal that has not been withdrawn that the Company Board believes in good faith to be bona fide, (2) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 5.2, (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes a Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law, the Company Board may (x) effect an Adverse Recommendation Change or (y) terminate this Agreement pursuant to Section 7.1(d)(2) in order to enter into a definitive binding agreement with respect to such Superior Proposal; provided, however, that the Company may not take either of the actions described in clause (x) or (y) above unless (I) the Company promptly notifies Parent in writing at least five Business Days before taking that action of its intention to do so, and specifying the reasons therefor, including the terms and conditions of, and the identity of any Person making, such Superior Proposal, or agree or commit to or agree to facilitate any and contemporaneously furnishing a copy of the foregoingrelevant Alternative Acquisition Agreement and any other relevant transaction documents (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 written notice by the Company and a new five Business Day period) and (II) prior to the expiration of such five Business Day period, Parent does not make a proposal to adjust the terms and conditions of this Agreement that the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that the failure to take such action is no longer reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law. Each Stockholder During the five Business Day period prior to its effecting an Adverse Recommendation Change or terminating this Agreement as referred to above, the Company shall, and shall cause its respective representatives financial and legal advisors to, immediately cease negotiate with Parent in good faith (to the extent Parent seeks to negotiate) regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by Parent.
(c) In addition to the obligations of the Company set forth in Section 5.2(a) and be terminated (b), the Company promptly, and in any event within 24 hours of receipt, shall advise Parent in writing in the event the Company or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal, (ii) any request for information, discussion or negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal or (iii) any inquiry, proposal or offer that is reasonably likely to lead to an Acquisition Proposal, in each case together with the terms and conditions of such Acquisition Proposal, request, inquiry, proposal or offer and the identity of the Person making any such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish Parent with a copy of such Acquisition Proposal (or, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). The Company shall keep Parent informed in all existing material respects on a timely basis of the status and details (including, within 24 hours after the occurrence of any material amendment, modification, development, discussion or negotiation) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation. Without limiting any of the foregoing, the Company shall promptly (and in any event within 24 hours) notify Parent orally and in writing if it determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.2(a) or (b) and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(d) The Company agrees that any material violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a material breach of this Agreement by the Company.
(e) The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to comply with any of the terms of this Section 5.2, and represents that neither it nor any of its Subsidiaries is a party to any such agreement.
(f) Except in connection with effecting an Adverse Recommendation Change pursuant to Section 5.2(b), the Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) conducted theretofore with respect to from the restrictions on “business combinations” or any similar provision contained in any Takeover Proposal Law or otherwise cause such restrictions not to apply, or agree to do any of the foregoing.
(g) Notwithstanding anything herein to the contrary, the Company and request from each Person the Company Board shall be permitted to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; provided, however, that has executed a confidentiality agreement compliance with such Stockholder rules will in no way limit or modify the prompt return or destruction of all confidential information previously furnished effect that any action pursuant to such Person rules would otherwise have under this Agreement (it being understood, however, that a customary “stop, look and listen” communication by the Company Board or its representativesany committee thereof pursuant to Rule 14d-9(f) under the Exchange Act shall not constitute an Adverse Recommendation Change).
(h) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from a) From the date of this Agreement until the earlier of the Effective Time or, if earlier, or the termination of this Agreement in accordance with Agreement, Company shall not and will not authorize or permit any of its termsofficers, each Stockholder shall notdirectors, and shall cause its respective employees, financial advisors, representatives not to, directly or indirectly, agents to (i) solicit, seek, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal proposals that constitutesconstitute, or could would be reasonably be expected likely to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets of Company and its Subsidiaries, taken as whole (other than the sale of inventory or obsolete property in the ordinary course of business), sale of shares of its capital stock (including without limitation by way of a tender offer) or similar transaction involving such party or any Takeover Proposal; of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "ACQUISITION PROPOSAL"), (ii) conduct, continue, engage in, solicitin negotiations or discussions with any Person other than Parent or its affiliates (a "THIRD PARTY") concerning, or otherwise participate provide any non-public information to any Person relating to, any Acquisition Proposal, or (iii) agree to or recommend any Acquisition Proposal; PROVIDED, HOWEVER, that nothing contained in any this Agreement shall prevent Company or the Company Board or the Special Committee from (A) furnishing nonpublic information to, or entering into discussions or negotiations with, disclose any Person in connection with an unsolicited bona fide written Acquisition Proposal by such Person or modifying or withdrawing its recommendation with respect to the transactions contemplated hereby or recommending an unsolicited bona fide written Acquisition Proposal to the Shareholders, if and only to the extent that (1) the Company Board or the Special Committee believes in good faith (after consultation with its financial and legal advisors) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to the Shareholders than the transactions contemplated by this Agreement, and the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is required for the Company Board or the Special Committee to comply with its fiduciary duties to the Shareholders under applicable law and (2) prior to furnishing such non-public information relating to, or entering into discussions or negotiations with, such Person, the Company Board or the Special Committee receives from such Person an executed confidentiality and standstill agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement, dated April 21, 1999 between Babbage's Etc., LLC and Company, as supplemented by letter agreement, dated April 7, 2000, by and among Parent, Babbage's Etc., LLC and Company (as supplemented, the "CONFIDENTIALITY AGREEMENT"); or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Company agrees not to release any Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, an Acquisition Proposal, unless the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is necessary for the Company Board or the Special Committee to comply with its fiduciary duties to its Shareholders under applicable law. Notwithstanding anything stated in this Section 6.3, the Company need not refuse a request from any Person who has signed a standstill agreement with the Company to make an Acquisition Proposal to the Chief Executive Officer or the Board of Directors of the Company if the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is necessary for the Company Board or the Special Committee to comply with its fiduciary duties to Shareholders under applicable law.
(b) Company shall notify Parent immediately after receipt by Company (or its advisors) of any Acquisition Proposal or any of its Subsidiaries to, afford request for nonpublic information in connection with an Acquisition Proposal or for access to the business, its properties, assets, personnel, books or records of the by any Person that informs Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to makeit is considering making, or has made, any Takeover Proposal an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the terms and conditions of such proposal, inquiry or contact (iii) enter intoincluding, approve or recommend any understandingwithout limitation, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any the identity of the foregoingPerson making the Acquisition Proposal). Each Stockholder shallCompany shall continue to keep Parent informed, and shall cause its respective representatives toon a current basis, immediately cease and be terminated of the status of any and all existing such discussions or negotiations with any Person and the terms being discussed or negotiated.
(other than c) Neither the Company Board nor the Special Committee shall withdraw, modify or change, or propose to withdraw, modify or change, in a manner adverse to Parent, the approval or recommendation by the Company Board or the Special Committee, as the case may be, of the Offer, this Agreement or the Merger unless the Company Board or the Special Committee, as the case may be, determines, in the exercise of its fiduciary duties, that it is necessary to do so. Nothing contained in this Section 6.3(c) conducted theretofore with respect will prohibit Company from taking and disclosing to any Takeover Proposal and request from each Person that has executed the Shareholders a confidentiality agreement with such Stockholder position contemplated by Rule 14e-2 promulgated under the prompt return or destruction of all confidential information previously furnished to such Person or its representativesExchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Barnes & Noble Inc), Merger Agreement (Funco Inc)
No Solicitation. Except to as otherwise agreed in writing with the extent Debt Purchaser, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations agrees that the Company would be required to comply with in connection therewith), from between the date of this Agreement until and the Effective Time or, if earlier, earlier of (a) the Closing and (b) the termination of this Agreement in accordance with Agreement, neither it nor any of its termsaffiliates, each Stockholder shall notofficers, and shall cause its respective directors, representatives not to, directly or indirectly, agents will (i) solicit, initiate, propose consider, encourage or knowingly take accept any action other proposals or offers from any person (A) relating to facilitate any acquisition or encourage (including by way purchase of furnishing non-public information) all or any portion of the submission capital stock or other securities of the Company or any Takeover Proposal of its subsidiaries or the making assets or properties of the Company or any proposal that constitutesof its subsidiaries or (B) to enter into any merger, consolidation, business combination, recapitalization, reorganization or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, other extraordinary business transaction involving or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries subsidiaries or (ii) participate in any discussions, conversations, negotiations and other communications regarding, or furnish to any other person any information with respect to, afford access or otherwise cooperate in any way with, assist or participate in, or facilitate or encourage any effort or attempt by any other person to seek to do any of the foregoing; provided that nothing in this Section 5.3 shall restrict the Company from participating in any discussions, conversations, negotiations or other communications regarding, or furnishing to any other person any information with respect to, an unsolicited offer or proposal relating to the businessforegoing if the Board of Directors of the Company determines in good faith, propertiesafter consultation with its outside legal counsel, assetsthat the failure to take such action would be inconsistent with its fiduciary duties under applicable law. The Company immediately shall cease and cause to be terminated all existing discussions, personnelconversations, books negotiations and other communications with any persons conducted heretofore with respect to any of the foregoing. The Company shall notify the Debt Purchaser promptly if any such proposal or records offer, or any inquiry or other contact with any person with respect thereto, is made and shall, in any such notice to the Debt Purchaser, indicate in reasonable detail the identity of the person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. The Company agrees not to, without the prior written consent of the Debt Purchaser, release any person from, or waive any provision of, any confidentiality or standstill agreement to which the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed Company’s subsidiaries is a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesparty.
Appears in 2 contracts
Sources: Debt Restructuring Agreement (Hungarian Telecom LP), Debt Restructuring Agreement (Invitel Holdings a/S)
No Solicitation. Except (a) The Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to, immediately cease any and all existing discussions, communications or negotiations with any Persons (other than Parent, Merger Sub and their Representatives) conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly (but in no event later than two (2) Business Days after the Effective Date) revoke, terminate or withdraw access of any Person (other than Parent, Merger Sub and their Representatives) to any data room (virtual or actual) containing any non-public information with respect to the extent Company or the Company would be permitted under Section 6.04 of Subsidiaries in connection with any Acquisition Proposal.
(b) At all times during the Merger Agreement to take such actions at the applicable time (and subject to compliance period commencing with the notice, disclosure execution and other obligations that the Company would be required to comply with in connection therewith), from the date delivery of this Agreement and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with its termspursuant to Article X and the Effective Time, each Stockholder the Company and the Company Subsidiaries shall not, and shall cause its their respective representatives Representatives not to, directly or indirectly, (i) solicit, initiateinitiate or cooperate with the making, propose submission or knowingly take any action to announcement of, or encourage, facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or assist the making of any proposal that constitutes, or could reasonably be expected to lead toof, any Takeover Acquisition Proposal; , (ii) conductfurnish to any Person (other than Parent, continue, engage in, solicit, Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, disclose Merger Sub) any non-public information relating to the Company or any of its Subsidiaries tothe Company Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, books or records of the Company or any of its Subsidiaries tothe Company Subsidiaries, in each such case that has made, submitted or announced, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could would reasonably be expected to make, submit or has madeannounce, any Takeover Proposal or with the intent to induce the making, submission or announcement of, or the intent to knowingly encourage, facilitate or assist the making, submission or announcement of, an Acquisition Proposal, (iii) enter into, approve participate or recommend engage in any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person with respect to an Acquisition Proposal or Acquisition Transaction, or (iv) resolve or publicly propose to take any of the actions referred to in clauses (i) through (iii). The Company agrees that any violation of the restrictions set forth in Section 5.02 by the Company Subsidiaries or any of the Company’s or any of the Company Subsidiaries’ Representatives shall be deemed a breach of this Agreement by the Company.
(c) The Company shall promptly (and in any event within twenty-four (24) hours from the time at which the Company becomes aware thereof) notify Parent orally and in writing if the Company becomes aware of the receipt by the Company, the Company Subsidiaries or any of their respective Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal. Such notice shall include the terms and conditions of such Acquisition Proposal, request or inquiry, the identity of the Person or group making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent informed of the status and terms of any such Acquisition Proposal, request or inquiry on a prompt basis, and in any event no later than twenty-four (24) hours after the occurrence of any material changes to any such Acquisition Proposal (including any change to the terms and conditions thereof and of any withdrawal thereof).
(d) The Company shall not, and shall cause the Company Subsidiaries and its and their respective Representatives not to, enter into any Contract with any Person that would restrict the Company’s ability to provide to Parent the information described in Section 5.02(c), and neither the Company nor any of the Company Subsidiaries is currently party to or bound by any Contract that prohibits the Company from providing the information described in Section 5.02(c) to Parent. The Company (i) shall not, and shall cause the Company Subsidiaries not to, terminate, waive, amend or modify, or grant permission under, any standstill, non-compete, non-solicitation or confidentiality provision in any Contract to which it or any of the Company Subsidiaries is or becomes a party relating to an Acquisition Proposal (other than any such Contract with Parent or Merger Sub), and (ii) shall, at the reasonable request of the Parent, cause the Company Subsidiaries and its and their respective Representatives to, use reasonable commercial efforts to enforce such standstill, non-compete, non-solicitation and confidentiality provisions if the Company becomes aware of any material breach thereof by the party subject thereto.
(e) conducted theretofore with respect to any Takeover Proposal and request from The Company shall promptly (but in no event later than five (5) Business Days after the Effective Date) (i) demand that each Person that has executed a confidentiality agreement in the preceding eighteen (18) months in connection with such Stockholder the prompt any Acquisition Proposal return or destruction of destroy all confidential non-public information previously furnished to such Person or its representativesRepresentatives by or on behalf of the Company or any of the Company Subsidiaries in accordance with the terms of the applicable confidentiality agreement, and (ii) revoke, terminate or withdraw access of any Person (other than Parent, Merger Sub and their Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company or the Company Subsidiaries in connection with any Acquisition Proposal.
(f) Notwithstanding the foregoing, nothing contained in this Section 5.02 shall prohibit the Company Board from furnishing information to, or entering into discussions or negotiations with, or entering into any transaction with, any person or entity that makes an unsolicited proposal to acquire the Company pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, the Company Board determines in good faith that such proposal provides greater value to the Company Shareholders than the Transactions (a “Superior Proposal”). The Company will notify the Parent after receipt by the Company (or any of its officers, directors, employees, or Representatives) of any proposal for, or inquiry respecting, a potential Superior Proposal, or any request for nonpublic information in connection with such proposal or inquiry or for access to the properties, books or records of the Company by any person that informs or has informed the Company that it is considering making or has made such a proposal or inquiry. This provision supersedes any other prior agreement or understanding between the Parent and Company regarding the solicitation of or marketing of the Company.
Appears in 1 contract
Sources: Merger Agreement (Helix TCS, Inc.)
No Solicitation. Except (a) Subject to the extent the Company would be permitted under terms of Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith5.2(b), from during the period commencing on the date of this Agreement hereof and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Article VIII and the Effective Time, the Company and its terms, each Stockholder Subsidiaries shall not, nor shall they authorize or knowingly permit their respective directors, officers, employees, affiliates, financial advisors, legal counsel, accountants and shall cause its respective other agents and representatives not (“Representatives”) to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly take any action to encourage, facilitate or encourage assist, an Acquisition Proposal, (including by way ii) furnish to any Person (other than Parent, Merger Sub or any designees of furnishing Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other non-public information) , or to any personnel of the Company or any of its Subsidiaries (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in any such case with the intent to induce or in a manner that reasonably would be expected to lead to the making, submission of or announcement of, or to encourage, facilitate or assist, an Acquisition Proposal or any Takeover Proposal inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead toto an Acquisition Proposal, (iii) participate, engage in or continue discussions or negotiations with any Person with respect to any Acquisition Proposal or (iv) enter into, or authorize the Company or any of its Subsidiaries to enter into, any Takeover Proposal; letter of intent, memorandum of understanding or other Contract or agreement in principle contemplating or otherwise relating to an Acquisition Transaction (other than an Acceptable Confidentiality Agreement) (a “Company Acquisition Agreement”). It is understood that any violation of the restrictions set forth in this Section 5.2(a) by any 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) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, but subject to the limitations set forth in this Section 5.2(b), Section 5.2(c) and Section 5.3, at all times during the period commencing on the date hereof and continuing until the Company’s receipt of the Requisite Stockholder Approval, the Company Board may, directly or indirectly through one or more Representatives, (i) participate or engage in discussions or negotiations with any Person that has made a bona fide unsolicited 39 Table of Contents written Acquisition Proposal after the date hereof which did not result from a breach of this Section 5.2, and/or (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, personnelbooks, books records or records other non-public information, or to the personnel of the Company or any of its Subsidiaries topursuant to an Acceptable Confidentiality Agreement, to any Person that has made a bona fide unsolicited written Acquisition Proposal after the date hereof which did not result from a breach of this Section 5.2, provided that (A) the Company Board determines in good faith (after consultation with its independent financial advisor and outside legal counsel) (it being understood and agreed that the “independence” of the Company Board’s independent financial advisor will be determined by the Company Board) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, (B) contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent to the extent such information has not been previously furnished to Parent, and (C) upon receipt of such Acquisition Proposal, the Company promptly (and in any event within 48 hours) provides Parent (x) a copy of any such Acquisition Proposal made in writing, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iiiy) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any a written summary of the foregoingmaterial terms of any such Acquisition Proposal not made in writing.
(c) From and after the date hereof, the Company shall keep Parent reasonably informed of any material developments regarding any Acquisition Proposal received by the Company and, upon the reasonable request of Parent, shall apprise Parent of the status of such Acquisition Proposal. Each Stockholder shall, The Company agrees that it and its Subsidiaries shall cause its respective representatives to, immediately cease and be terminated not enter into any and all existing discussions or negotiations confidentiality agreement with any Person (other than Parent) conducted theretofore subsequent to the date hereof which prohibits the Company from complying with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesobligations under this Section 5.2.
Appears in 1 contract
Sources: Merger Agreement (3com Corp)
No Solicitation. Except (a) The Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to, immediately cease any and all existing discussions, communications or negotiations with any Persons (other than Parent, Merger Sub and their Representatives) conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly (but in no event later than two (2) Business Days after the Effective Date) revoke, terminate or withdraw access of any Person (other than Parent, Merger Sub and their Representatives) to any data room (virtual or actual) containing any non-public information with respect to the extent Company or the Company would be permitted under Section 6.04 of Subsidiaries in connection with any Acquisition Proposal.
(b) At all times during the Merger Agreement to take such actions at the applicable time (and subject to compliance period commencing with the notice, disclosure execution and other obligations that the Company would be required to comply with in connection therewith), from the date delivery of this Agreement and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with its termspursuant to Article IX and the Effective Time, each Stockholder the Company shall not, and shall cause its their respective representatives Representatives not to, directly or indirectly, (i) solicit, initiateinitiate or cooperate with the making, propose submission or knowingly take any action to announcement of, or encourage, facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or assist the making of any proposal that constitutes, or could reasonably be expected to lead toof, any Takeover Acquisition Proposal; , (ii) conductfurnish to any Person (other than Parent, continue, engage in, solicit, Merger Sub or otherwise participate in any discussions designees of Parent or negotiations with, disclose Merger Sub) any non-public information relating to the Company Company, or afford to any Person (other than Parent, Merger Sub or any designees of its Subsidiaries to, afford Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, books or records of the Company Company, in each such case that has made, submitted or any of its Subsidiaries toannounced, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could would reasonably be expected to make, submit or has madeannounce, any Takeover Proposal or with the intent to induce the making, submission or announcement of, or the intent to knowingly encourage, facilitate or assist the making, submission or announcement of, an Acquisition Proposal, (iii) enter into, approve participate or recommend engage in any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person with respect to an Acquisition Proposal or Acquisition Transaction, or (iv) resolve or publicly propose to take any of the actions referred to in clauses (i) through (iii). The Company agrees that any violation of the restrictions set forth in Section 5.02 by the Company Subsidiaries or any of the Company’s or any of the Company Subsidiaries’ Representatives shall be deemed a breach of this Agreement by the Company.
(c) The Company shall promptly (and in any event within twenty-four (24) hours from the time at which the Company becomes aware thereof) notify Parent orally and in writing if the Company becomes aware of the receipt by the Company or any of their respective Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal. Such notice shall include the terms and conditions of such Acquisition Proposal, request or inquiry, the identity of the Person or group making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent informed of the status and terms of any such Acquisition Proposal, request or inquiry on a prompt basis, and in any event no later than twenty-four (24) hours after the occurrence of any material changes to any such Acquisition Proposal (including any change to the terms and conditions thereof and of any withdrawal thereof).
(d) The Company shall not, and shall cause the Company Subsidiaries and its and their respective Representatives not to, enter into any Contract with any Person that would restrict the Company’s ability to provide to Parent the information described in Section 5.02(c), and neither the Company nor any of the Company Subsidiaries is currently party to or bound by any Contract that prohibits the Company from providing the information described in Section 5.02(c) to Parent. The Company (i) shall not, and shall cause the Company Subsidiaries not to, terminate, waive, amend or modify, or grant permission under, any standstill, non-compete, non-solicitation or confidentiality provision in any Contract to which it or any of the Company Subsidiaries is or becomes a party relating to an Acquisition Proposal (other than any such Contract with Parent or Merger Sub), and (ii) shall, at the reasonable request of the Parent, cause the Company Subsidiaries and its and their respective Representatives to, use reasonable commercial efforts to enforce such standstill, non-compete, non-solicitation and confidentiality provisions if the Company becomes aware of any material breach thereof by the party subject thereto.
(e) conducted theretofore with respect to any Takeover Proposal and request from The Company shall promptly (but in no event later than five (5) Business Days after the Effective Date) (i) demand that each Person that has executed a confidentiality agreement in the preceding eighteen (18) months in connection with such Stockholder the prompt any Acquisition Proposal return or destruction of destroy all confidential non-public information previously furnished to such Person or its representativesRepresentatives by or on behalf of the Company in accordance with the terms of the applicable confidentiality agreement, and (ii) revoke, terminate or withdraw access of any Person (other than Parent, Merger Sub and their Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company or the Company Subsidiaries in connection with any Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Sugarmade, Inc.)
No Solicitation. Except to During the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlierTerm, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and it shall cause its respective officers, directors, employees, agents or representatives (collectively, the "REPRESENTATIVES") not to, directly or indirectly, (i) solicit, initiate, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Acquisition Proposal or the making of any proposal that constitutesinquiry with respect thereto, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, enter into or otherwise participate in any discussions or negotiations with, disclose furnish any non-public information relating to the Company or any of its Subsidiaries to, subsidiaries or afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate, encourage, facilitate or knowingly assist encourage any effort by, any third party that could reasonably be expected is seeking to make, or has made, any Takeover an Acquisition Proposal or (iii) enter into, approve into any letter of intent or recommend similar document or any understandingcontract, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract commitment contemplating or otherwise relating to an Acquisition Proposal. Upon execution of this Agreement, the Stockholder shall, and it shall cause its Representatives to, immediately cease any Takeover Proposalexisting activities, discussions or agree or commit negotiations with any parties conducted heretofore with respect to or agree to facilitate any of the foregoing. Each Stockholder shallTo the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, the Stockholder shall cause notify Parent promptly (but in no event later than 24 hours) after receipt by the Stockholder of any Acquisition Proposal, any indication that any third party is considering making an Acquisition Proposal or any request for information relating to the Company or any of its respective representatives subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its subsidiaries by any third party that may be considering making, or has made, an Acquisition Proposal. To the same extent required by the Company pursuant to, immediately cease and be terminated subject to the same conditions contained in, the Merger Agreement, the Stockholder shall provide such notice orally and in writing and shall identify the third party making, and the terms and conditions of, any and all existing discussions such Acquisition Proposal, indication or negotiations with request. Notwithstanding any Person (other than Parent) conducted theretofore with respect provision of this Section 1.06 to the contrary, if the Stockholder or any Takeover Proposal and request from each Person that has executed of its Representatives is a confidentiality agreement with member of the Company's Board of Directors, such Stockholder member of the prompt return or destruction Company's Board of all confidential information previously furnished Directors may take actions in such capacity to such Person or its representativesthe extent permitted by Section 7.04 of the Merger Agreement.
Appears in 1 contract
Sources: Stockholder Agreement (Novell Inc)
No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations agrees that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or neither it nor any of its Subsidiaries to, afford access to nor any of the business, properties, assets, personnel, books or records respective officers and directors of the Company or any of its Subsidiaries shall, and the Company shall direct and cause its employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to stockholders of the Company) with respect to a merger, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets, deposits or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or, except to the extent legally required for the discharge by the Company's board of directors of its fiduciary duties as advised by such board's counsel with respect to an unsolicited offer from a third party, engage in any negotiations concerning or provide any information or data to, or participate inhave any discussions with, facilitate, encourageany person relating to an Acquisition Proposal, or knowingly assist otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than the Parent) conducted heretofore with respect to any of the foregoing. The Company will take the necessary steps to inform promptly the appropriate individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 4.02(a). The Company agrees that it will notify the Parent immediately if any such inquiries, proposals or offers are received by, any third party that could reasonably be expected to makesuch information is requested from, or any such negotiations or discussions are sought to be initiated or continued with the Company or any of its Subsidiaries. The Company also agrees that it promptly shall request each other person (other than the Parent) that has madeheretofore executed a confidentiality agreement in 32 connection with its consideration of acquiring the Company or any of its Subsidiaries to return all confidential information heretofore furnished to such person by or on behalf of the Company or any of Subsidiaries.
(b) Except to the extent legally required for the discharge by the Company's board of directors of its fiduciary duties as advised by such board's counsel, 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 Sub, the approval or recommendation by such Board of Directors of this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal takeover proposal or (iii) enter into, approve or recommend into any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal takeover proposal.
(c) In addition to the obligations of the Company set forth in Section 4.02(b), the Company promptly shall advise Parent orally and in writing of any request for information or of any takeover proposal, or any inquiry with respect to or which could lead to any takeover proposal, the material terms and conditions of such request, takeover proposal or inquiry and the identity of the person making any such request, takeover proposal or inquiry. The Company will keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such request, takeover proposal or inquiry.
(d) Nothing contained in this Section 4.02 shall prohibit the Company from each Person 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 based on the written opinion of independent counsel, failure to do so would be inconsistent with applicable laws; provided that has executed the Company does not, withdraw or modify, its position with respect to the Merger or approve or recommend, or propose to approve or recommend, a confidentiality agreement with such Stockholder takeover proposal, except as permitted by the prompt return or destruction last sentence of all confidential information previously furnished to such Person or its representativesSection 5.03.
Appears in 1 contract
No Solicitation. Except (a) Subject to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date provisions of this Agreement until the Effective Time orSection 5.23, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall ▇▇▇▇▇▇▇ will not, and shall will cause its Subsidiaries not to, and will cause ▇▇▇▇▇▇▇’▇ and its Subsidiaries’ respective officers, directors, employees, Affiliates, agents and representatives not to, directly or indirectly, (i) solicit, initiate, propose initiate or solicit or knowingly take encourage any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries with respect to, or the making of of, any proposal that constitutesAcquisition Proposal or (ii) except as permitted below, (A) engage in negotiations or could reasonably be expected to lead discussions with or provide any information or data to, any Takeover Person relating to an Acquisition Proposal; , (iiB) conductapprove, continue, engage in, solicitendorse or recommend, or otherwise participate in propose publicly to approve, endorse or recommend, any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries toAcquisition Proposal, or participate in, facilitate, encourage, (C) execute or knowingly assist enter into any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understandingletter of intent, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership acquisition agreement or other Contract similar agreement relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoingAcquisition Proposal (other than a confidentiality agreement contemplated by Section 5.23(b)). Each Stockholder ▇▇▇▇▇▇▇ shall, and shall cause each of its respective officers, directors, employees, Affiliates, agents and representatives to, (i) immediately cease and be terminated any and all existing solicitations, discussions or negotiations with any Person (other than ParentEQBK or Merger Sub) conducted theretofore heretofore with respect to any Takeover Acquisition Proposal and promptly request from each return or destruction of confidential information related thereto, (ii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its officers, directors, employees, Affiliates, agents and representatives is a party, and (iii) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the approval of the Eastman shareholders, in the event that ▇▇▇▇▇▇▇ receives a bona fide Acquisition Proposal that is not received in violation of this Section 5.23, ▇▇▇▇▇▇▇ and its Board may participate in discussions or negotiations with, or furnish any information to, any Person making such Acquisition Proposal and its agents and representatives or potential sources of debt financing that has executed need to be involved in such discussion if the ▇▇▇▇▇▇▇ Board determines in good faith, after consultation with its counsel and financial advisor, that such Person is reasonably likely to submit to ▇▇▇▇▇▇▇ a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the board of directors’ fiduciary duties; provided, however, that, prior to providing any nonpublic information to such Person or participating in discussions or negotiations with such Person, ▇▇▇▇▇▇▇ shall have entered into a confidentiality agreement with such Stockholder Person on terms that are substantially similar to the prompt return confidentiality provisions of the Confidentiality Agreement and that any nonpublic information concerning ▇▇▇▇▇▇▇ and its Subsidiaries provided to such Person, to the extent not previously provided to EQBK, is promptly provided to EQBK. In addition, nothing herein shall restrict ▇▇▇▇▇▇▇ from complying with its disclosure obligations with regard to any Acquisition Proposal under applicable Law.
(c) ▇▇▇▇▇▇▇ will promptly (and in any event within 48 hours) notify EQBK of the receipt by ▇▇▇▇▇▇▇ of any Acquisition Proposal, which notice shall include the material terms of and identity of the Person(s) making such Acquisition Proposal. ▇▇▇▇▇▇▇ will (subject to the fiduciary duties of the board of directors) keep EQBK reasonably informed of the status and material terms and conditions of any such Acquisition Proposal and of any material amendments or destruction proposed material amendments thereto and will promptly notify EQBK of any determination by the ▇▇▇▇▇▇▇ Board that such Acquisition Proposal constitutes a Superior Proposal.
(d) The ▇▇▇▇▇▇▇ Board may, at any time prior to obtaining the approval of the Eastman shareholders, (i) approve, endorse or recommend a Superior Proposal or enter into a definitive agreement with respect to a Superior Proposal, or (ii) modify or amend in a manner adverse to EQBK or withdraw the ▇▇▇▇▇▇▇ Recommendation ((i) or (ii) above being referred to as a “Change in Recommendation”), provided that (A) prior to such Change in Recommendation, the ▇▇▇▇▇▇▇ Board shall determine, in good faith (after consultation with its counsel), that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) such Change in Recommendation is in connection with a Superior Proposal or an Intervening Event and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account any action taken by EQBK pursuant to Section 5.23(e).
(e) Notwithstanding anything to the contrary contained in this Agreement, ▇▇▇▇▇▇▇ may not terminate this Agreement to enter into a definitive agreement with respect to a Superior Proposal unless (i) it notifies EQBK in writing of its intention to take such action at least five (5) Business Days prior to taking such action, specifying the material terms of any applicable Superior Proposal, identifying the Person(s) making such Superior Proposal and providing EQBK an unredacted copy of all confidential information previously furnished of the agreements with the party making such Superior Proposal, (ii) EQBK does not make, after being provided with reasonable opportunity to negotiate with ▇▇▇▇▇▇▇ and its agents and representatives, within such Person or five (5) Business Day period, irrevocable adjustments in the terms and conditions of this Agreement that the ▇▇▇▇▇▇▇ Board determines, in good faith after consultation with its representativescounsel and financial advisors, is at least as favorable to ▇▇▇▇▇▇▇’▇ shareholders as such Superior Proposal, and (iii) ▇▇▇▇▇▇▇ is not in material breach of this Section 5.23.
Appears in 1 contract
No Solicitation. Except (a) The Company and its Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to the extent any Acquisition Proposal and shall use its commercially reasonable efforts to cause any such Person (and its agents and advisors) in possession of confidential information concerning the Company would be permitted under Section 6.04 and its Subsidiaries that was furnished by or on behalf of the Merger Agreement Company to take return or destroy all such actions at information.
(b) During the applicable time (and subject to compliance with the noticeInterim Period, disclosure and other obligations that neither the Company would be required to comply with in connection therewith)nor any of its Subsidiaries nor any of their respective directors, from the date of this Agreement until the Effective Time orofficers or other employees, if earliercontrolled Affiliates, the termination of this Agreement in accordance with its termsor any investment banker, each Stockholder shall not, and shall cause its respective representatives not toattorney or other agent or representative shall, directly or indirectly, (i) solicit, initiateinitiate or induce the making, propose submission or knowingly take any action to announcement of, or encourage, facilitate or encourage assist, an Acquisition Proposal, (including by way ii) furnish to any Person (other than Parent, Merger Sub or any designees of furnishing Parent or Merger Sub) any non-public information) information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books, records or personnel of the Company or any of its Subsidiaries to, or cooperate in any way with, any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in any such case with the intent to induce the making, submission of or announcement of, or to encourage, facilitate or assist, an Acquisition Proposal or any Takeover Proposal inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead toto an Acquisition Proposal, any Takeover Proposal; (iiiii) conduct, continue, participate or engage in, solicit, or otherwise participate in any discussions or negotiations withwith any Person with respect to an Acquisition Proposal (except to the extent permitted pursuant to Section 5.3(b)), disclose (iv) approve, endorse or recommend an Acquisition Proposal or make any Change of Recommendation (except to the extent permitted pursuant to Section 5.3(b)), (v) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (vi) enter into any letter of intent, agreement in principle, memorandum of understanding term sheet, acquisition agreement, option agreement or other Contract contemplating or otherwise relating to an Acquisition Transaction; provided, however, that notwithstanding the foregoing, if and only if the Company has not breached any of the restrictions or obligations set forth in Section 5.2(a) and this Section 5.2(b), prior to the receipt of the Requisite Stockholder Approval, the Company Board may, directly or indirectly through agents or other representatives, (A) participate or engage in discussions or negotiations with any Person that has made an unsolicited bona fide written Acquisition Proposal that the Company Board determines in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to result in a Superior Proposal and/or (B) furnish to any Person that has made an unsolicited bona fide written Acquisition Proposal that the Company Board determines in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to result in a Superior Proposal any non-public information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement, which confidentiality agreement shall not include any exclusivity or other provision prohibiting the Company from satisfying its obligations hereunder (it being agreed that no non-public information relating to the Company or its Subsidiaries shall be provided to such Person pursuant to any existing confidentiality agreement or other obligation of confidentiality in effect on the date hereof), provided, however, that in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company Board reasonably determines in good faith (after consultation with outside legal counsel) that failure to do so would be inconsistent with its fiduciary obligations to the Company Stockholders under Delaware Law, (2) at least twenty-four (24) hours prior to participating or engaging in any such discussions or negotiations with, or furnishing any non-public information to, afford access such Person, the Company gives Parent written notice of the identity of the Person making such Acquisition Proposal and a copy of all documentation relating to such Acquisition Proposal (or a written summary of the material terms thereof) and written notice of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person and (3) prior to or contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent to the businessextent such information has not been previously furnished by the Company to Parent.
(c) Without limiting the generality of the foregoing, propertiesParent, assetsMerger Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any directors, personnelofficers or other employees, books controlled Affiliates, or records of any investment banker, attorney or other agent or representative retained by, the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably shall be expected deemed to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter be a breach of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of this Section 5.2 by the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany.
Appears in 1 contract
Sources: Merger Agreement (SoftBrands, Inc.)
No Solicitation. (a) Except to as permitted by this Section 5.3, during the extent Pre-Closing Period, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives Subsidiaries and its and their officers and directors not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly, (i) continue any solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to any Acquisition Proposal or any Product Transaction Proposal; (ii) (A) solicit, initiate, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of any proposal or offer that constitutes, or could would reasonably be expected to lead to, any Takeover Acquisition Proposal or any Product Transaction Proposal; , (iiB) conduct, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information in connection with, disclose or for the purpose of soliciting or knowingly encouraging or facilitating, any non-public information relating Acquisition Proposal or any Product Transaction Proposal or any proposal or offer that would reasonably be expected to lead to any Acquisition Proposal or any Product Transaction Proposal (other than to state that the terms of this provision prohibit such discussion), (C) approve, adopt, endorse or recommend or enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to any Acquisition Proposal or any Product Transaction Proposal or any proposal or offer that would reasonably be expected to lead to any Acquisition Proposal or any Product Transaction Proposal (other than an Acceptable Confidentiality Agreement) or (D) take any action to exempt any Person (other than Parent and its Subsidiaries) from the restrictions on “business combinations” or any similar provision contained in applicable Takeover Laws or the Company’s organizational and other governing documents; (iii) waive or release any Person from, forebear in the enforcement of, or amend any standstill agreement or any standstill provisions of any other Contract; or (iv) resolve or agree to do any of the foregoing. As promptly as reasonably practicable (and in any event within two business days) following the date hereof, the Company shall discontinue electronic or physical data room access granted, and request the prompt return or destruction (to the extent provided for by the applicable confidentiality agreement) of all information or documents previously furnished to any Person (other than Parent, its Affiliates and their respective Representatives) that has made, has indicated an intention to make any Acquisition Proposal or any Product Transaction Proposal and all material incorporating such information created by any such Person.
(b) If at any time on or after the date of this Agreement and prior to the Offer Acceptance Time any Acquired Company or any of their Representatives receives a bona fide written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made on or after the date of this Agreement and did not result from a material breach of this Section 5.3, and the Board of Directors determines in good faith, after consultation with its Subsidiaries financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Offer and that the failure to take such action described in clauses (x) and (y) below would be inconsistent with its fiduciary duties under applicable Legal Requirements, then, notwithstanding anything in Section 5.3(a) to the contrary, the Company and its Representatives may (x) furnish, pursuant to an Acceptable Confidentiality Agreement (a copy which shall be furnished to Parent promptly after the execution thereof), information (including non-public information) with respect to the Company to the Person or group of Persons who has made such Acquisition Proposal, provided that the Company shall as promptly as practicable (and in any event within 24 hours) provide to Parent any information concerning the Acquired Companies that is provided to any Person to the extent access to such information was not previously provided to Parent or its Representatives; and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal; provided, in the case of clauses (x) and (y), that at or prior to the first time that the Company furnishes any information to or participates in any discussions or negotiations with any Person on or after the date of this Agreement, the Company shall provide written notice to Parent of such determination in good faith of the Board of Directors as provided for above and the identity of such Person.
(c) During the Pre-Closing Period, the Company shall (i) promptly (and in any event within 24 hours) notify Parent orally and in writing if any inquiries, proposals or offers with respect to, afford access or that would reasonably be expected to lead to, an Acquisition Proposal are received by any Acquired Company or any of their Representatives and provide to Parent a copy of any written inquiry or Acquisition Proposal (including any proposed term sheet, letter of intent, acquisition agreement or other agreement or other supporting materials with respect thereto and all material written correspondence from such Person or Persons making the inquiry or Acquisition Proposal) and a summary of any material unwritten terms and conditions thereof (and indicate the identity of the Person or Persons making the inquiry or Acquisition Proposal), and (ii) keep Parent reasonably informed of any material developments, discussions or negotiations, and provide Parent any material correspondence received or made by any Acquired Company or any of their Representatives regarding any Acquisition Proposal on a prompt basis (and in any event within 24 hours of such material development, discussion, negotiation, delivery or receipt by the Company).
(d) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company from disclosing to the businessstockholders of the Company any “stop, propertieslook and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act or from taking and disclosing such other position or disclosure as is required under Rule 14e-2(a), assetsRule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or from taking any action necessary to comply with applicable Legal Requirements; provided, personnelhowever, books or records that the Board of Directors shall not effect a Company Adverse Change Recommendation except in accordance with Section 6.1(b).
(e) The Company agrees that in the event any Representative of the Company or any of its Subsidiaries to, acting on behalf of the Company or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of its Subsidiaries takes any action that, if taken by the foregoing. Each Stockholder shallCompany, and would constitute a breach of this Section 5.3, the Company shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect deemed to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction be in breach of all confidential information previously furnished to such Person or its representativesthis Section 5.3.
Appears in 1 contract
No Solicitation. Except to the extent the The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall will not, and shall cause its respective representatives not to, directly or indirectly, nor will it authorize or permit any of its directors, officers, shareholders, employees or agents or any investment banker, financial advisor, accountant, attorney or other representative, directly or indirectly, to (i) solicit, initiate, propose encourage or knowingly induce the making, submission or announcement of any offer or proposal (other than the transactions contemplated by this Agreement) contemplating or otherwise relating to any Acquisition Transaction (as defined below) (an "Acquisition Proposal"), or take any action that could reasonably be expected to facilitate or encourage lead to an Acquisition Proposal; (including by way of furnishing ii) furnish any non-public informationor confidential information regarding the Company or its shareholders to any person or entity (other than Parent or Merger Sub or their representatives) the submission of any Takeover Proposal or the making of any proposal that constitutesin connection with, or could in response to, an Acquisition Proposal; (iii) engage in discussions or negotiations with any person or entity (other than Parent or Merger Sub or their representatives) with respect to any Acquisition Proposal; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document or any agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. The Company further agrees that (i) it has caused to be terminated all solicitations, submissions, announcements, discussions, offers, proposals or other actions constituting, or that might reasonably be expected to lead to, any Takeover Proposalor be deemed to be, an Acquisition Proposal (other than the transaction contemplated by this Agreement); and (ii) conductafter the date of this Agreement, continueit will immediately notify Parent of, engage inand cause to be terminated, solicitany and all solicitations, submissions, announcements, discussions, offers, proposals or other actions constituting, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could might reasonably be expected to makelead to, or has madebe deemed to be, any Takeover Proposal an Acquisition Proposal. Such notification obligation will include disclosure of the identity of the person or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover entity making the Acquisition Proposal, the terms and conditions of such Acquisition Proposal and any material financing terms. The term "Acquisition Transaction" means any transaction or agree or commit to or agree to facilitate any series of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person transactions (other than Parentthose contemplated by this Agreement) conducted theretofore with respect to involving: (i) any Takeover Proposal merger, consolidation, share exchange, business combination, issuance of securities, acquisition of securities, tender offer, exchange offer or other similar transaction in which (A) the Company is a constituent corporation, (B) a person, entity or "group" (as defined in the Exchange Act and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return rules promulgated thereunder) of persons or destruction entities, directly or indirectly acquires the Company or more than 50% of all confidential information previously furnished to such Person the Company's business or, directly or its representativesindirectly, acquires beneficial or record ownership of securities representing more than 50% of the outstanding securities of any class of the Company's voting securities or (C) in which the Company issues securities representing more than 50% of the outstanding securities of any class of the Company's voting securities; or (ii) any sale, lease, exchange, transfer, encumbrance, license or disposition of more than 50% of the Company's assets, net of liabilities, carried at book value.
Appears in 1 contract
Sources: Merger Agreement (Immersion Corp)
No Solicitation. Except (a) Notwithstanding any provision in this Agreement to the extent contrary, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and nor shall cause its respective representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or it permit any of its Subsidiaries to, afford access to the businessnor shall it authorize or permit any director, propertiesofficer, assetsemployee, personnelinvestment banker, books attorney, accountant or records other advisor or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries to, directly or participate inindirectly (and it shall instruct, facilitateand cause each of its Subsidiaries to instruct, each Representative of the Company or any of its Subsidiaries not to), (i) solicit, initiate or encourage, or knowingly assist any effort byfacilitate, any third party Acquisition Proposal or any inquiries or the making of any proposal that could would reasonably be expected to make, or has made, any Takeover lead to an Acquisition Proposal or (iiiii) enter intointo or otherwise participate in any discussions or negotiations regarding, approve or recommend furnish to any understandingperson (or any representative thereof) any information with respect to, agreement or otherwise cooperate in principleany way with any person (or any representative thereof) with respect to, letter any Acquisition Proposal; provided, however, that if, at any time prior to the Offer Closing, the Company receives a bona fide written Acquisition Proposal that the Board of intentDirectors of the Company determines in good faith either constitutes, term sheetor is reasonably likely to lead to, acquisition agreementa Superior Proposal, merger agreementand which Acquisition Proposal did not result from a breach of this Section 5.02(a), option agreementthe Company may, joint venture agreementand may authorize and permit any of its Subsidiaries and any director, partnership agreement officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other Contract relating advisor or representative of the Company or any of its Subsidiaries to, in each case subject to any Takeover Proposalcompliance with Section 5.02(c) and the other provisions of this Agreement, (A) furnish information with respect to the Company and its Subsidiaries to the person making such Acquisition Proposal (and its advisors and representatives) pursuant to a confidentiality agreement which contains terms that are no less restrictive (in all but de minimis respects) to such person than those contained in the Confidentiality Agreement dated June 13, 2007 between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”) and that allows for the Company to comply with its obligations pursuant to this Section 5.02 (including the notification provisions of Section 5.02(b) and (c)), provided that all such information has been provided, or agree or commit is concurrently provided, to or agree to facilitate any of the foregoing. Each Stockholder shallParent, and shall cause its respective representatives to, immediately cease and be terminated any and all existing (B) enter into or otherwise participate in discussions or negotiations with the person making such Acquisition Proposal (and its advisors and representatives) regarding such Acquisition Proposal. Without limiting the generality of the foregoing, it is understood that any Person (other than Parentviolation of the restrictions set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.02(a) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder by the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany.
Appears in 1 contract
Sources: Merger Agreement (Komag Inc /De/)
No Solicitation. Except (a) The Company shall and shall cause its Subsidiaries and their respective officers and directors to, and shall instruct and use its best efforts to cause its and their other respective Representatives to, immediately cease any and all existing discussions, communications or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and during the extent the Company would be permitted under Section 6.04 Interim Period shall not recommence any of the Merger Agreement foregoing.
(b) Subject to take such actions Section 5.2(c), at all times during the applicable time (and subject to compliance period commencing with the notice, disclosure execution and other obligations that the Company would be required to comply with in connection therewith), from the date delivery of this Agreement and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Article IX and the Effective Time (the “Interim Period”), the Company and its terms, each Stockholder Subsidiaries shall not, and nor shall cause its they authorize or permit any of their respective representatives not Representatives to, directly or indirectly, (i) solicitsolicit or initiate the making, initiatesubmission or announcement of, propose or knowingly take any action to encourage, facilitate or encourage assist or otherwise discuss or communicate with any Person (including by way other than Parent, Merger Sub or any designees of furnishing Parent or Merger Sub), any offer or proposal which constitutes or is reasonably likely to lead to an Acquisition Proposal, (ii) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information) , or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission of any Takeover or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries on the making of of, any proposal or other communication that constitutes, or could would reasonably be expected to lead toto an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any Takeover Person (other than Parent, Merger Sub or any Representatives of Parent or Merger Sub) with respect to an Acquisition Proposal (other than to state that the terms of this Agreement prohibit such discussions) (iv) approve or recommend an Acquisition Proposal (other than the Merger) or (v) enter into any Contract contemplating or otherwise relating to an Acquisition Transaction. The Company agrees that any violation of the restrictions set forth in this Section 5.2(b) by it or any of its Subsidiaries or any of its or any of its Subsidiaries’ Representatives shall be deemed a material breach of this Agreement by the Company; provided, however, that in the event of a breach of this Section 5.2(b) by a Representative that is not an officer or director of the Company, then such breach would only be deemed material if the violation of the restriction led to discussions with any of the Company's directors or officers regarding a potential equity transaction with the Company which may interfere with the consummation of the Merger as contemplated hereunder (other than a response by the contacted Company director or officer refusing to discuss any such transaction).
(c) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the Effective Time, the Company Board (or any committee thereof), may, directly or indirectly through the Company’s Representatives, (i) participate or engage in discussions or negotiations with any Person that has, in the absence of any material violation of Section 5.2(b) by the Company, made a bona fide, written and unsolicited Acquisition Proposal and that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal; , and/or (ii) conductfurnish to any Person that has, continuein the absence of any material violation of Section 5.2(b) by the Company, engage inmade an Acquisition Proposal of the type referred to clause (i), solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries toand/or afford to any Person that has, afford in the absence of any material violation of Section 5.2(b) by the Company, made such an Acquisition Proposal access to the business, properties, assets, books, records or other non-public information, or to any personnel, books of the Company or records any of its Subsidiaries, in each case under this clause (ii) pursuant to a confidentiality agreement that is no less favorable to the Company, in the aggregate, than the Confidentiality Agreement; provided, however, that in the case of any action taken pursuant to the preceding clauses (i) or (ii), (A) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of directors under applicable Law, (B) promptly thereafter, but no later than forty eight (48) hours following such determination, the Company shall give Parent written notice of the identity of such Person and the material terms of such Acquisition Proposal including any modifications thereto (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof including any modifications thereto) and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person, and shall in no event begin providing such information to such Person prior to providing such notice to the Parent, and (C) as soon as reasonably practicable after furnishing any non-public information about the Company and its Subsidiaries to such Person (and in any event within forty eight (48) hours thereafter), the Company shall furnish such non-public information to Parent to the extent such information has not been previously furnished by the Company to Parent.
(d) In addition to the obligations of the Company set forth in Section 5.2(b), the Company shall promptly (and in any event within forty eight (48) hours) notify Parent in writing if the Company becomes aware of the receipt by the Company or any of its Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (unless such Acquisition Proposal, request or inquiry is in written form, in which case the Company shall give Parent a copy thereof), and the identity of the Person or group making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent fully informed of any material changes in status and terms of any such Acquisition Proposal, request or inquiry on a current basis, and in any event no later than forty eight (48) hours after the occurrence of any material changes to any such Acquisition Proposal (including to the terms and conditions thereof and of any material modification thereto), and any significant developments in the discussions and negotiations concerning any such Acquisition Proposal.
(e) The Company shall not, and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to provide to Parent the information described in this Section 5.2, and neither the Company nor any of its Subsidiaries is currently a party to any agreement that prohibits the Company from providing the information described in this Section 5.2 to the Parent. The Company (A) except to the extent inconsistent with the fiduciary duties of directors under applicable Law, shall not, and shall cause its Subsidiaries not to, terminate, waive, amend or modify, or grant permission under, any standstill provision in any confidentiality agreement to which it or any of its Subsidiaries is or becomes a party (other than as occurs in accordance with the terms of any such standstill provision in effect as of the date hereof), and (B) shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to enforce such standstill provisions if it becomes aware of any breach of any such standstill provision by the party subject thereto.
(f) The Company shall promptly (but in no event later than two (2) Business Days after the date of this Agreement) (i) demand that each individual or entity that has executed a confidentiality agreement in the preceding eighteen (18) months in connection with any potential Acquisition Proposal return (or destroy, to the extent permitted by the terms of the applicable confidentiality agreement) all confidential information furnished to such individual or entity by or on behalf of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter accordance with the terms of intent, term sheet, acquisition the applicable confidentiality agreement, merger agreement, option agreement, joint venture agreement, partnership agreement and (ii) revoke or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any withdraw access of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent, Merger Sub and their Representatives) conducted theretofore to any data room (virtual or actual) containing any non-public information with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person Company or its representativesSubsidiaries in connection with an Acquisition Proposal.
Appears in 1 contract
No Solicitation. Except (a) Notwithstanding any other provision of this Agreement to the extent contrary, during the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from period beginning on the date of this Agreement and continuing until 11:59 p.m., New York time, on the date that is 35 days after the date of public announcement of this Agreement (the “Solicitation Period End-Date”), the Company and its Representatives shall have the right (acting under the direction of the Board of Directors (or the Independent Committee)) to, directly or indirectly: (i) solicit, initiate and encourage any Acquisition Proposals, including by way of providing access to non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided that any non-public information provided to any person given such access shall have been previously provided to Parent or shall be provided to Parent prior to or substantially at the same time as it is provided to such person and (ii) enter into and maintain discussions or negotiations with respect to Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations.
(b) Subject to Section 5.3(c) (and except with respect to any Excluded Party), from the Solicitation Period End-Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termsTermination Date, each Stockholder the Company shall not, and shall cause not permit any of its respective representatives not toSubsidiaries or any of its or their Representatives, directly or indirectly, to (i) solicit, initiate, propose or knowingly take any action to facilitate endorse, or encourage (including by way of furnishing non-public information) the submission of or facilitate any Takeover Proposal inquiry, proposal or offer with respect to, or the making of or completion of, any proposal that constitutesAcquisition Proposal, or could any inquiry, proposal or offer that is reasonably be expected likely to lead toto an Acquisition Proposal, any Takeover Proposal; (ii) conductenter into, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information or data with respect to, or otherwise cooperate in any way with, disclose any Acquisition Proposal or (iii) resolve, propose or agree to do any of the foregoing. Subject to Section 5.3(c) and except with respect to any person (or group of persons that includes among its members one or more persons that (A) were members of such group prior to the Solicitation Period End-Date and (B) collectively constitute at least 50% of the equity financing of such group at all times following the Solicitation Period End-Date and prior to the termination of this Agreement) from whom the Company has received a written Acquisition Proposal prior to the Solicitation Period End-Date with respect to which the requirements of Section 5.3(c)(iii) have been satisfied as of the Solicitation Period End-Date (any such person or group of persons so submitting such Acquisition Proposal, an “Excluded Party”), as determined, with respect to any Excluded Party, by the Board of Directors (or the Independent Committee) no later than the Solicitation Period End-Date, at the Solicitation Period End-Date, (A) the Company shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Acquisition Proposal, and (B) the Company shall (x) promptly request the prompt return or destruction of all confidential information previously furnished and (y) thereafter not terminate, waive, amend, release or modify any material provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal, and shall use reasonable best efforts to enforce the material provisions of any such agreement. Notwithstanding anything to the contrary in this Section 5.3, each Excluded Party shall continue to be an Excluded Party for all purposes under this Agreement until such Excluded Party withdraws or terminates its Acquisition Proposal (including any amendment thereto) or the Acquisition Proposal of such Excluded Party expires in accordance with its terms and the Excluded Party is no longer pursing such Acquisition Proposal.
(c) Notwithstanding anything to the contrary in Section 5.3(b), if at any time following the date of this Agreement and prior to obtaining the Company Stockholder Approvals, (i) the Company receives a written Acquisition Proposal that the Board of Directors (or the Independent Committee) believes in good faith to be bona fide, (ii) such Acquisition Proposal was unsolicited and did not otherwise result from a material breach of this Section 5.3, (iii) the Board of Directors (or the Independent Committee) determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and (iv) the Board of Directors (or the Independent Committee) determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be inconsistent with fulfillment of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (x) furnish information and data with respect to the Company and its Subsidiaries to the person making such Acquisition Proposal pursuant to (and only pursuant to) an Acceptable Confidentiality Agreement; provided that any non-public information relating provided to any person given such access shall have been previously provided to Parent or shall be provided to Parent prior to or substantially at the Company same time as it is provided to such person and (y) enter into, maintain and participate in discussions or any of its Subsidiaries to, afford access to negotiations with the business, properties, assets, personnel, books person making such Acquisition Proposal regarding such Acquisition Proposal or records of the Company otherwise cooperate with or any of its Subsidiaries to, assist or participate in, or facilitate, encourageany such discussions or negotiations. Notwithstanding anything to the contrary in Section 5.3(b) or this Section 5.3(c), prior to obtaining the Company Stockholder Approvals, the Company shall be permitted to take the actions described in clauses (x) and (y) above with respect to any Excluded Party. The parties agree that nothing herein shall prevent the Company and its Representatives from solely directing any persons to this Agreement from the Solicitation Period End-Date until the Effective Time or, if earlier, the Termination Date.
(d) Neither the Board of Directors nor any committee thereof shall (i) (A) withdraw (or knowingly assist modify or qualify in any effort bymanner adverse to Parent or Merger Sub) the approval, recommendation or declaration of advisability by the Board of Directors or any third party that could reasonably be expected to makesuch committee of this Agreement, the Merger or has madeany of the other transactions contemplated hereby, (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Takeover Acquisition Proposal or (iiiC) resolve, agree or publicly propose to take any such actions (each such action set forth in this Section 5.3(d)(i) being referred to herein as an “Adverse Recommendation Change”) or (ii) cause or permit the Company to enter intointo any letter of intent, approve or recommend any memorandum of understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating agreement (each, an “Alternative Acquisition Agreement”) constituting or directly related to, or which is intended to or is reasonably likely to lead to, any Takeover Acquisition Proposal (other than any Acceptable Confidentiality Agreements) or (iii) resolve, agree or publicly propose to take any such actions. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approvals, the Board of Directors (or the Independent Committee) may, if the Board of Directors (or the Independent Committee) determines in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with the fulfillment of its fiduciary duties to the stockholders of the Company under applicable Law, taking into account all adjustments to the terms of this Agreement including the Merger Consideration that may be offered by Parent pursuant to this Section 5.3(d), (x) make an Adverse Recommendation Change in response to either (I) a Superior Proposal received after the date hereof and that does not otherwise result from a material breach of this Section 5.3 or (II) material changes in circumstances that are not related to an Acquisition Proposal or (y) solely in response to a Superior Proposal received after the date hereof and that did not otherwise result from a material breach of this Section 5.3, cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii) (including payment of the Termination Fee) and concurrently enter into a binding Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that (1) (A) no Adverse Recommendation Change may be made and (B) no such termination of this Agreement and entry into an Alternative Acquisition Agreement, by the Company may be made in connection with a Superior Proposal, in each case until after the fifth business day following Parent’s receipt of written notice from the Company advising Parent that the Board of Directors (or agree the Independent Committee) intends to make an Adverse Recommendation Change or commit terminate this Agreement pursuant to Section 7.1(d)(ii), as the case may be, and specifying the relevant terms and conditions of, and the characteristics (i.e., whether a strategic or agree financial buyer, whether a competitor and other similar information that would not reasonably be expected to facilitate any lead to the identification of the foregoing. Each Stockholder party) of the person making, any Superior Proposal that is the basis of the proposed action by the Board of Directors (or the Independent Committee), and contemporaneously furnishing a copy of the relevant Alternative Acquisition Agreement (but not including the identity of the persons that are parties to such Alternative Acquisition Agreement) and any other relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any other amendment to another material term of such Superior Proposal shall require a new written notice by the Company and an additional three (3) business day period), (2) during such five (5) business day period (or any additional three (3) business day period), the Company shall, and shall cause its respective representatives financial and legal advisors to, immediately cease negotiate with Parent in good faith (to the extent Parent seeks to negotiate) 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 such an Adverse Recommendation Change or terminate this Agreement and (3) the Company shall not make such an Adverse Recommendation Change or terminate this Agreement if, prior to the expiration of such five (5) business day period (or any additional three (3) business day period), Parent makes a proposal to adjust the terms and conditions of this Agreement (which may include changes in the Merger Consideration) that the Board of Directors (or the Independent Committee) determines in good faith (after consultation with outside counsel and its financial advisor) to be terminated at least as favorable as the Superior Proposal.
(e) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.3, within twenty-four (24) hours of the Solicitation Period End-Date, the Company shall notify Parent of number and characteristics (i.e., whether a strategic or financial buyer, whether a competitor and other similar information that would not reasonably be expected to lead to the identification of the party) of the Excluded Parties, if any, and provide Parent with a copy of each Acquisition Proposal received from any Excluded Party (but not including the identity of the Excluded Party). From and after the Solicitation Period End-Date, the Company promptly, and in any event within twenty-four (24) hours of receipt, shall advise Parent in writing in the event the Company or any of its Subsidiaries or Representatives receives any Acquisition Proposal together with the material terms and conditions of such Acquisition Proposal (including the characteristics (i.e., whether a strategic or financial buyer, whether a competitor and other similar information that would not reasonably be expected to lead to the identification of the party), but not the identity, of the person making such Acquisition Proposal and a copy of any written documentation delivered to the Company or its Representatives in connection therewith with the identity of the party making the Acquisition Proposal deleted). The Company shall keep Parent informed in all existing material respects on a timely basis of the status and details (including, within twenty-four (24) hours after the occurrence of any material amendment or modification) of any such Acquisition Proposal (including, after the Solicitation Period End-Date, an Acquisition Proposal made by an Excluded Party), including all material developments with respect to any such Acquisition Proposal. Following the Solicitation Period End-Date, without limiting any of the foregoing, the Company shall promptly (and in any event within twenty-four (24) hours) notify Parent in writing if it determines to begin providing information or to engage in discussions or negotiations with concerning an Acquisition Proposal pursuant to Section 5.3(c) or (d).
(f) The Company shall promptly inform its Representatives, and shall cause its Subsidiaries promptly to inform their respective Representatives of the obligations under this Section 5.3.
(g) The Company shall not take any Person action to exempt any person (other than Parent, Merger Sub and their respective affiliates) conducted theretofore from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provision of any other Takeover Law) or otherwise cause such restrictions not to apply (except to the extent that the execution of this Agreement has such an effect or to the extent that the Voting Agreements are deemed to have such an effect with respect to such other person), or agree to do any Takeover Proposal of the foregoing, in each case unless such actions are taken concurrently with a termination of this Agreement pursuant to Section 7.1(d)(ii).
(h) Nothing contained in this Section 5.3 shall prohibit the Company from (i) taking and request from each Person disclosing a position contemplated by Rules 14e-2(a) and 14d-9 under the Exchange Act or (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Board of Directors (or the Independent Committee) after consultation with its outside legal counsel, failure to do so would be inconsistent with the disclosure requirements under applicable Law; provided, however, that has executed in no event shall this Section 5.3(h) affect the obligations of the Company specified in Sections 5.3(b), (c) and (d); and provided further, that any disclosure that constitutes a confidentiality agreement with such Stockholder “stop, look and listen” communication or similar communication of the prompt return or destruction type contemplated by Section 14d-9(f) under the Exchange Act shall not be deemed to be an Adverse Recommendation Change (including for purposes of all confidential information previously furnished to such Person or its representativesSection 7.1(c)(ii)).
(i) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. Except to (a) From and after the extent date hereof, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause not authorize any of its respective representatives not Affiliates or Representatives to, directly or indirectly, : (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission or announcement of any Takeover Acquisition Proposal or any inquiries with respect to the making submission or announcement of any Acquisition Proposal; (ii) participate in discussions or negotiations regarding, or furnish any information relating to, the Company with respect to, or otherwise cooperate in any way with, any effort or attempt by any Person (other than Parent or its Affiliates) to make an inquiry in respect of or make any proposal or offer that constitutes, or could may reasonably be expected to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, into a letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement memorandum of understanding or other Contract agreement with any Person, other than Parent or its Affiliates, relating to an Acquisition Proposal; or (iv) waive any Takeover Proposal, Standstill Agreement or agree voting restriction contained in the organizational or commit to or agree to facilitate any governing documents of the foregoingCompany. Each Stockholder The Company shall ensure that its Representatives are aware of the provisions of this Section 6.03, and any violation of the restrictions contained in this Section 6.03 by the Company Board (including any committee thereof) or any Representative of the Company shall be deemed to be a breach of this Section 6.03 by the Company.
(b) The Company shall, and shall cause its respective representatives Affiliates and all of its and their Representatives to, (i) immediately cease and be terminated terminate any and all existing discussions solicitations, discussions, negotiations or negotiations other activity with any Person (other than ParentParent or its Affiliates) being conducted theretofore with respect to any Takeover Acquisition Proposal and or inquiry that may reasonably be expected to lead to, any Acquisition Proposal on the date hereof, (ii) promptly request from that each Person (other than Parent or its Affiliates) that has executed received confidential information in connection with a confidentiality agreement with such Stockholder possible Acquisition Proposal return to the prompt return Company or destruction of destroy all confidential information previously heretofore furnished to such Person by or its representativeson behalf of the Company and (iii) use commercially reasonable efforts to enforce, and not amend, terminate, modify or grant any waiver under, any confidentiality, standstill or other agreement to which the Company is a party (such agreement, a “Standstill Agreement”)).
Appears in 1 contract
No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its the Company Subsidiaries and the Company’s and the Company Subsidiaries’ respective representatives Representatives not to, directly or indirectly, :
(i) solicit, initiate, propose encourage, or knowingly take any action to knowingly facilitate the submission of, or encourage any inquiries with respect to, any Acquisition Proposal by a Third Party,
(including ii) participate in any discussions or negotiations with a Third Party or such Third Party’s Representatives regarding, or furnish to any Third Party or Third Party’s Representative, any information or data with respect to, or otherwise cooperate in any way with respect to, or assist or participate in, any Acquisition Proposal or any potential Acquisition Proposal,
(iii) enter into any letter of intent, memorandum of understanding, acquisition agreement or other agreement, arrangement, or understanding that contemplates an Acquisition Proposal by way such Third Party or requiring the Company to terminate, abandon, or fail to consummate the Transactions, or
(iv) approve, adopt, endorse, or recommend to its shareholders or any other person any Acquisition Proposal; provided, however, that prior to the Merger being approved by the Required Shareholder Vote, the Company and its Representatives, in connection with any bona fide written Acquisition Proposal received by the Company or any of furnishing non-public informationits Representatives without any material violation of clause (i) above, may furnish information and data to a Third Party or such Third Party’s Representatives and take any other action referred to in clause (ii) above, if:
(A) the submission Company Board determines in good faith, after consultation with outside legal counsel, that failing to take such action would result in a breach by the Company Board of any Takeover its fiduciary duties to the Company and its shareholders under applicable Law,
(B) the Company Board determines in good faith that the Acquisition Proposal or the making of any proposal that constitutes, or could reasonably be expected to lead to, a Superior Proposal,
(C) at least forty-eight (48) hours prior to initially furnishing or otherwise disclosing any Takeover such information or data or initiating or participating in any such negotiations or discussions with such Third Party or such Third Party’s Representatives, the Company gives Parent written notice of such Acquisition Proposal; , including a copy thereof and the identity of such Third Party, and of the Company’s intention to furnish information or data to or to engage in negotiations or discussions with such Third Party or such Third Party’s Representatives, and (D) prior to providing any information or data to such Third Party or Third Party’s Representatives, the Company enters into a confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement and which shall not contain restrictions that would prevent the Company from complying with its disclosure obligations in this Section 6.2. In addition, prior to or contemporaneously with providing any information or data (whether initially or pursuant to subsequent deliveries of information or data) to such Third Party or such Third Party’s Representatives, the Company shall furnish or otherwise make available to Parent such information or data that have not been previously furnished or otherwise made available to Parent, if any. After receipt of any Acquisition Proposal, request, or inquiry by the Company, it shall promptly (and in any event within twenty-four (24) hours or, if such time is not on a Business Day, then on the next Business Day) keep Parent informed in all material respects of the status and details (including the material terms of the Acquisition Proposal and material amendments or proposed material amendments) of any such Acquisition Proposal, request, or inquiry. Unless previously provided pursuant to section (C) above, the Company shall provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is expected to consider any Acquisition Proposal or any such inquiry or to consider providing information to any person or group in connection with an Acquisition Proposal or related inquiry.
(b) Neither the Company Board nor any committee thereof shall:
(i) withdraw, modify, amend, or qualify, in any manner adverse to Parent or Merger Sub, the approval or recommendation by the Company Board or any committee thereof of this Agreement, the Merger, or any other Transaction (the “Company Board Recommendation”), or make any public statement inconsistent with the Company Board Recommendation (any of the foregoing, a “Change in Recommendation”),
(ii) conductfail to recommend against acceptance of a publicly announced tender or exchange offer that constitutes an Acquisition Proposal within ten (10) Business Days after the earlier of the commencement of such offer and the Company’s receipt of a written request from Parent to recommend against acceptance of such offer, continueor
(iii) fail to reconfirm the Company Board Recommendation within ten (10) Business Days after the Company receives a written request from Parent to do so; unless, engage inin the case of clause (i), solicitclause (ii), or otherwise participate clause (iii) of this sentence, the Company Board has received a Superior Proposal not in violation of Section 6.2(a), or there is another event that was neither known to nor reasonably foreseeable by any discussions member of the Company Board, assuming consultation with the executive officers of the Company, as of or negotiations withprior to the date of this Agreement, disclose and did not result from or arise out of the announcement or pendency of the Merger, any non-public information relating action required to be taken (or to be refrained from being taken) pursuant to this Agreement, or the receipt of an Acquisition Proposal, the occurrence of which event has a material adverse effect on the Company Board’s ability to recommend the consummation of the Merger without breaching its fiduciary duties to the Company or any of and its Subsidiaries toshareholders under applicable Law (such event, afford access an “Intervening Event”), and the Company Board, prior to the businessCompany General Meeting, propertiesdetermines in good faith (after consultation with outside legal counsel and, assets, personnel, books or records in respect of the Company Intervening Event, after consulting with a financial advisor of nationally recognized reputation) that in light of the receipt of such Superior Proposal or any the occurrence of its Subsidiaries tothe Intervening Event, failure to do so (i.e., that failing to make a Change in Recommendation, that recommending against acceptance of a tender or exchange offer in the circumstances described in clause (ii) of this sentence, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or reconfirming the Company Board Recommendation in the circumstances described in clause (iii) enter into, of this sentence) would result in a breach by the Company Board of its fiduciary duties to the Company and its shareholders in accordance with applicable Law.
(c) Neither the Company Board nor any committee thereof shall approve or recommend any understandingAcquisition Proposal by a Third Party or cause or permit the Company to take any action contemplated by Section 6.2(a)(iii). Notwithstanding the foregoing, agreement prior to the commencement of the Company General Meeting (which commencement shall not be deemed to have occurred if such general meeting is postponed or adjourned in principleaccordance with Section 6.5), letter the Company Board and the Company may, in response to a written Acquisition Proposal received by the Company and subject to compliance with the terms of intentSection 6.2(a) in connection with such Acquisition Proposal (or any related Acquisition Proposal), term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate take any of the foregoing. Each Stockholder shallactions described in the first sentence of this Section 6.2(c) (each a “Specified Action”) if, and only if:
(i) the Company Board shall cause have determined in good faith (after consultation with outside legal counsel) that failing to take such Specified Action would result in a breach by the Company Board of its respective representatives to, immediately cease fiduciary duties to the Company and be terminated any and all existing discussions or negotiations with any Person its shareholders under applicable Law;
(other than Parentii) conducted theretofore with respect the Company Board shall have determined that such Acquisition Proposal constitutes a Superior Proposal (a “Designated Superior Proposal”);
(iii) the Company Board shall have provided written notice to any Takeover Proposal and request from each Person Parent that has executed it intends to take a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished Specified Action in response to such Person or its representatives.Designated Superior Proposal (a
Appears in 1 contract
Sources: Merger Agreement (NCR Corp)
No Solicitation. Except to (a) During the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from period beginning on the date of this Agreement and continuing until the earlier of the Effective Time or, if earlier, and the termination of this Agreement in accordance with Section 9.1, the Company and its termsSubsidiaries and their respective officers and directors shall, and the Company shall instruct and cause its and its Subsidiaries’ other Representatives to, cease and cause to be terminated any discussions or negotiations with any Person that would otherwise be prohibited by this Section 7.7(a). Promptly following the execution of this Agreement, the Company shall deliver a written notice to each Stockholder such Person to the effect that, subject to the provisions of this Section 7.7, the Company is ending all discussions and negotiations with such Person with respect to any Alternative Proposal, effective on and from the date of this Agreement, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and/or its Subsidiaries. Subject to the provisions of this Section 7.7, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the Effective Time and the Termination Date, the Company and its Subsidiaries shall not, and shall cause its and their respective representatives Representatives not to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage solicit (including by way of furnishing non-public information) the submission of ), initiate or knowingly encourage or facilitate any Takeover Proposal inquiry with respect to, or the making of making, submission or announcement of, any proposal or offer that constitutes, or could is reasonably be expected to lead to, any Takeover an Alternative Proposal; , (ii) conduct, continue, engage in, solicit, furnish to any Person (other than Parent or otherwise participate in any discussions Merger Sub or negotiations with, disclose their respective designees) any non-public information relating to the Company and/or its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiaries (other than Parent or Merger Sub or their respective designees), in any such case relating to an Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations regarding any Alternative Proposal with any Person, except to notify such Person as to the existence and content of the provisions of this Section 7.7, or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement (except for any portion of any such standstill or confidentiality agreement that restricts the ability of a Person to communicate an Alternative Proposal to Company Board), or anti-takeover laws.
(b) Notwithstanding anything to the contrary set forth in this Section 7.7 or elsewhere in this Agreement, until this Agreement shall have been approved by the Company Required Vote, the Company may, directly or indirectly through one or more Affiliates or Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company and/or its Subsidiaries to, and/or afford access to the business, properties, assets, books, records or other non-public information, or to the personnel, books of the Company and/or its Subsidiaries to, a Person or records group of Persons that makes a bona fide Alternative Proposal (under circumstances in which the Company has complied with its non- solicitation obligations under Section 7.7(a)); provided, however, that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to Parent or Merger Sub or their respective Representatives (which requirement may be satisfied by posting such information in the online data room established by the Company prior to the date hereof); and provided further that, prior to initiating any such action, the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Alternative Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal; and provided further that prior to furnishing such information or access to, or entering into substantive discussions (except as to the existence of this Section 7.7) or negotiations with, such Person(s), (A) the Company receives from such Person(s) an executed Acceptable Confidentiality Agreement and (B) the Company notifies Parent to the effect that it intends to furnish information or access to, or intends to enter into substantive discussions or negotiations with, such Person(s). The Company agrees that neither the Company nor any of the Company’s Subsidiaries will enter into any confidentiality agreement with any Person subsequent to the date hereof that prohibits the Company from providing such information to Parent.
(c) Except as provided by Section 7.7(d), at any time after the execution of this Agreement, the Company Board shall not:
(i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to Parent and Merger Sub (a “Company Recommendation Change”);
(ii) approve or recommend any Alternative Proposal; or
(iii) cause or permit the Company or any of its Subsidiaries toto enter into any letter of intent, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any memorandum of understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract similar agreement (an “Alternative Acquisition Agreement”) relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)) or authorize, approve or publicly recommend an Alternative Proposal or any Takeover agreement, understanding or arrangement relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)).
(d) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to the time that this Agreement shall have been approved by the Company Required Vote, (i) the Company is then in receipt of a bona fide written Alternative Proposal from any Person that is not withdrawn and that the Company Board concludes in good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal, or agree (ii) if there occurs any Fiduciary Change, the Company Board may (1) effect a Company Recommendation Change, and/or (2) in the case of a Superior Proposal, adopt, approve, endorse or commit recommend, or publicly propose to adopt, approve, endorse or agree recommend, to facilitate any the stockholders of the foregoing. Each Stockholder shallCompany any such Superior Proposal and authorize the Company to terminate this Agreement in accordance with Section 9.1(c)(ii) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal(provided, however, that in such event under this clause (2), the Company concurrently terminates this Agreement pursuant to Section 9.1(c)(ii) and enters into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal), provided that the Company Board may effect a Company Recommendation Change, if and only if:
(i) the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that failure to take such action would be inconsistent with the directors’ exercise of their fiduciary obligations to the stockholders of the Company under applicable laws; and
(ii) the Company shall have validly terminated this Agreement in accordance with Section 9.1(c)(ii), including the payment of the Company Termination Fee in accordance with Section 9.2(a); provided, however, that (A) prior to terminating this Agreement, the Company shall give Parent at least three (3) Business Days’ notice thereof, attaching the Alternative Proposal Agreement (or, if applicable, the most current draft thereof), which notice need only be given once with respect to any Superior Proposal, unless such Superior Proposal is modified in any material respect in which case the three (3) Business Day period referred to herein shall be 48 hours, and shall cause its respective representatives to(B) if, immediately cease and be terminated any and all existing discussions within such three (3) Business Day period (or negotiations with any Person where applicable, 48 -hour period), Parent makes an offer to the Company that the Company Board determines in good faith is more favorable to the stockholders of the Company (other than Parent, Merger Sub and their respective Affiliates), from a financial point of view, than such Superior Proposal (taking into account, among other things, (I) conducted theretofore the terms of such offer and (II) all legal, financial (including the financing terms thereof), regulatory, timing and other aspects of such offer which the Company Board deems relevant), and agrees in writing to all adjustments in the terms and conditions of this Agreement as are necessary to reflect such offer, the Company’s notice of termination with respect to such Superior Proposal shall be deemed to be rescinded and of no further force and effect and, if the Company or any Subsidiary of the Company has entered into a Superior Proposal Agreement, it shall promptly terminate such agreement (it being agreed that the Company will cause any Alternative Acquisition Agreement entered into prior to the expiration of such three (3) Business Day period (or where applicable, 48-hour period) to include a provision permitting such termination).
(e) The Company shall keep Parent reasonably informed regarding the matters contemplated by this Section 7.7 (including any Alternative Proposals). Without limiting the generality of foregoing, (i) the Company shall promptly notify Parent if any proposals or offers with respect to an Alternative Proposal are received by the Company or any of its Representatives indicating, in connection with such notice, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such proposals or offers (including any material amendments thereto), including any change in the Company’s intentions as previously notified, and (ii) the Company agrees that it will promptly notify Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company or any of its Representatives indicating, in connection with such notice, the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing such information to Parent.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from (i) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 or 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to its stockholders if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s stockholders under applicable law or would constitute a violation of applicable law. It is understood and agreed that, for purposes of this Agreement (including Section 7 and Section 9), a factually accurate public statement by the Company that describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto, or any “stop, look and listen” communication by the Company Board, shall not constitute a Company Recommendation Change or an approval or recommendation with respect to any Takeover Alternative Proposal.
(g) Other than with respect to the Debt Commitment, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other Person, in any such case with respect to any Alternative Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder involving the prompt return or destruction of all confidential information previously furnished to such Person or its representativesCompany.
(h) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement
No Solicitation. Except Subject to the extent the Company would be Section 9 of this Agreement and except as otherwise expressly permitted under Section 6.04 5.10 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith)Agreement, from and after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement pursuant to Section 6 of this Agreement, Shareholder, solely in accordance with its termshis or her capacity as a shareholder of Company, each Stockholder shall not, and nor shall cause such Shareholder authorize, to the extent applicable to Shareholder, any partner, officer, director, advisor, agent or representative of such Shareholder or any of his or her affiliates to (and, to the extent applicable to Shareholder, Shareholder shall use reasonable best efforts to prohibit any of his, her, or its respective representatives not or affiliates to, directly or indirectly), (ia) solicit, initiate, propose initiate or knowingly take encourage any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiry with respect to, or the making of of, any proposal that constitutes, constitutes or could reasonably be expected to lead to, any Takeover to a Company Acquisition Proposal; (iib) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations regarding a Company Acquisition Proposal with, disclose or furnish any non-public nonpublic information relating to the a Company or any of its Subsidiaries Acquisition Proposal to, afford access any person that has made or, to the businessknowledge of Shareholder, properties, assets, personnel, books or records of the is considering making a Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or Acquisition Proposal; (iiic) enter into, approve or recommend into any understandingagreement, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposalmemorandum of understanding, or agree similar arrangement with respect to a Company Acquisition Proposal; (d) solicit proxies or commit become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person a Company Acquisition Proposal (other than Parentthe Merger Agreement) conducted theretofore or otherwise encourage or assist any party in taking or planning any action that would reasonably be expected to compete with, restrain, or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement; (e) initiate a shareholders’ vote or action by consent of Company’s shareholders with respect to a Company Acquisition Proposal; or (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any Takeover voting securities of Company that takes any action in support of a Company Acquisition Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder (other than the prompt return or destruction of all confidential information previously furnished to such Person or its representativesMerger Agreement).
Appears in 1 contract
No Solicitation. Except to the extent as expressly permitted by this Section 7.02, the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder Subsidiaries shall not, shall cause their respective directors and executive officers not to, and shall cause not permit or authorize any of its or their respective officers, directors, employees, consultants, agents, financial advisors, attorneys, accountants, other advisors, Affiliates and other representatives not (collectively, “Representatives”) to, directly or indirectly, :
(i) solicit, initiateseek, propose initiate or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of, any submission or announcement of any a proposal or offer that constitutes, or could would reasonably be expected to lead to, any Takeover Acquisition Proposal; ;
(ii) conduct, continue, engage in, solicit, continue or otherwise participate in any discussions or negotiations withregarding, disclose or furnish to any other Person any non-public information relating to in connection with or for the Company purpose of encouraging or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort byfacilitating, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or Acquisition Proposal;
(iii) enter intoapprove, approve endorse or recommend any understanding, agreement in principle, Acquisition Proposal; or
(iv) enter into any letter of intent, term sheetmemorandum of understanding, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract similar agreement (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”) relating to any Takeover Acquisition Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder The Company shall, and shall cause its respective representatives Subsidiaries to, and shall direct and use its reasonable best efforts to cause its and their Representatives to, immediately cease and cause to be terminated any all discussions and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore that may be ongoing with respect to any Takeover Proposal Acquisition Proposal, and request from the Company shall promptly deliver a written notice to each such Person to the effect that has executed a confidentiality agreement the Company is ending all discussions and negotiations with such Stockholder the prompt Person with respect to any Acquisition Proposal, which notice shall also request such Person to promptly return or destruction of destroy all confidential information previously furnished to such Person or concerning the Company and its representativesSubsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Heinz H J Co)
No Solicitation. (a) Except as permitted by this Section 5.4, the Company shall and shall cause each of its Subsidiaries and its and their respective officers and directors to, and shall instruct and use its reasonable best efforts to cause its other Representatives to (i) immediately cease any direct or indirect solicitation, discussions or negotiations with any Persons with respect to a Takeover Proposal that existed on or prior to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time date hereof and (ii) from and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from after the date of this Agreement hereof until the Effective Offer Acceptance Time or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, each Stockholder shall not, and shall cause its respective representatives not to, directly or indirectlyindirectly (A) initiate, (i) solicit, initiate, propose knowingly encourage or knowingly take any action to facilitate or encourage (including by way of furnishing non-public providing information) the submission of any Takeover Proposal proposals, offers or inquiries regarding, or the making of any proposal or offer that constitutes or could reasonably be expected to lead to, a Takeover Proposal, (B) engage in, continue or otherwise participate in, knowingly encourage or knowingly facilitate any discussions or negotiations (including providing any data room access) regarding, or furnish to any other Person any non-public information in connection with, or for the purpose of encouraging, a Takeover Proposal or (C) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement providing for a Takeover Proposal. The Company shall promptly (and in any event within five (5) Business Days hereof) request in writing to each Person that has prior to the date of this Agreement executed a confidentiality agreement in connection with its consideration of a proposed Takeover Proposal to, in accordance with the terms of such agreement, return or destroy all confidential information furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of the Company or any of its Subsidiaries. Notwithstanding anything herein to the contrary, the Company, in its sole discretion, shall be entitled to waive or release any preexisting explicit or implicit standstill provisions or similar agreements with any Person or group of Persons that has the effect of prohibiting the counterparty thereto from making a private Takeover Proposal to the Company Board.
(b) Notwithstanding anything contained in Section 5.4(a) or any other provision of this Agreement to the contrary, if, at any time from and after the date hereof until the earlier of the Offer Acceptance Time or the termination of this Agreement in accordance with Article VII, the Company or any of its Representatives receives a written Takeover Proposal, which Takeover Proposal did not result from any breach of this Section 5.4, (i) the Company and its Representatives may contact such Person or group of Persons making the Takeover Proposal solely to clarify the terms and conditions thereof and (ii) if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company and any of its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives; provided, that the Company shall promptly (and in any event within twenty-four (24) hours) provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access that was not previously provided to Parent or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons and its or their Representatives regarding such Takeover Proposal.
(c) From and after the date hereof until the Offer Acceptance Time or, if earlier, the termination of this Agreement in accordance with Article VII, the Company shall (i) promptly (and in any event within twenty-four (24) hours after knowledge of receipt by an officer or director of the Company) notify Parent if any inquiries, proposals or offers with respect to a Takeover Proposal are received by the Company or any of its Representatives, (ii) with respect to a Takeover Proposal, provide to Parent the identity of the Person or group of Persons making such Takeover Proposal and a copy of the Takeover Proposal or, if not in writing, a summary of the material terms and conditions of any Takeover Proposal, (iii) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Takeover Proposal on a prompt basis and (iv) upon the request of Parent, reasonably inform Parent of the status and material details (including material amendments to the terms) of such Takeover Proposal.
(d) Except as set forth in this Section 5.4, neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify, amend or qualify in a manner adverse to Parent), or publicly propose to withdraw (or modify, amend or qualify in a manner adverse to Parent), the Company Board Recommendation, (B) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Takeover Proposal, (C) fail to include the Company Board Recommendation in the Schedule 14D-9, (D) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Takeover Proposal subject to Regulation 14D under the Exchange Act within ten (10) Business Days after commencement of such Takeover Proposal or (E) following the date of receipt of any Takeover Proposal or any material modification thereto is first made public, sent or given to the stockholders of the Company, fail to issue a press release that expressly reaffirms the Company Board Recommendation within two (2) Business Days following the Company’s receipt of Parent’s written request to do so (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”), or (ii) approve, adopt or recommend, or propose publicly to approve or recommend, or allow the Company or any Subsidiary to enter into, any Contract, letter of intent or memorandum of understanding or other similar agreement constituting, or that would reasonably be expected to result in, any Takeover Proposal, other than an Acceptable Confidentiality Agreement (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary set forth in Section 5.4(d), in response to a written Takeover Proposal received by the Company Board after the date of this Agreement that did not result from a breach of this Section 5.4 and that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, the Company Board may, at any Takeover time prior to the Offer Acceptance Time, make an Adverse Recommendation Change or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.4(a), or authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met:
(i) the Company shall have (A) provided to Parent five (5) Business Days’ prior written notice, which shall state expressly (1) that it has received a Superior Proposal; , (2) the material terms and conditions of the Superior Proposal (including the consideration offered therein and the identity of the Person or group making the Superior Proposal), and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and a new four (4) Business Day period) and (3) that, subject to clause (ii) conductbelow, continuethe Company Board has determined to effect an Adverse Recommendation Change or to terminate this Agreement in accordance with Section 7.4(a) in order to enter into the Alternative Acquisition Agreement, as applicable, and (B) prior to making such an Adverse Recommendation Change or terminating this Agreement in accordance with Section 7.4(a), as applicable, to the extent requested by Parent, engaged in good faith negotiations with Parent, and cause its Representatives to engage inin good faith negotiations with Parent’s Representatives, solicitduring such notice period to amend this Agreement in such a manner that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal; and
(ii) the Company Board shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that, in light of such Superior Proposal and taking into account any revised terms proposed by Parent, such Superior Proposal continues to constitute a Superior Proposal and that the failure to make such Adverse Recommendation Change or to so terminate this Agreement in accordance with Section 7.4(a), as applicable, would be inconsistent with the directors’ fiduciary duties under applicable Law.
(f) Notwithstanding anything to the contrary set forth in Section 5.4(d), upon the occurrence of any Intervening Event, the Company Board may, at any time prior to the Offer Acceptance Time, make an Adverse Recommendation Change, or otherwise participate authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met:
(i) the Company shall have (A) provided to Parent five (5) Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Intervening Event and the rationale for the Adverse Recommendation Change and (2) state expressly that, subject to clause (ii) below, the Company Board has determined to effect an Adverse Recommendation Change and (B) prior to making such an Adverse Recommendation Change, to the extent requested by Parent, engaged in good faith negotiations, and cause its Representatives to engage in good faith negotiations with Parent’s Representatives, with Parent during such five (5) Business Day period to amend this Agreement in such a manner that the failure of the Company Board to make an Adverse Recommendation Change in response to the Intervening Event in accordance with clause (ii) below would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; and
(ii) the Company Board shall have determined in good faith, after consultation with its outside legal counsel, that in light of such Intervening Event and taking into account any discussions or negotiations withrevised terms proposed by Parent, disclose any non-public information relating the failure to make an Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law.
(g) Nothing contained in this Agreement shall prohibit the Company or any of its Subsidiaries tothe Company Board, afford access directly or indirectly through their respective Representatives, from (i) taking and disclosing to the business, properties, assets, personnel, books or records stockholders of the Company any position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any of its Subsidiaries to“stop, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected look and listen” communication to make, or has made, any Takeover Proposal the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act or (iii) enter into, approve or recommend making any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating disclosure to any Takeover Proposal, or agree or commit to or agree to facilitate any the stockholders of the foregoing. Each Stockholder shallCompany that is required by applicable Law, and after consulting with outside legal counsel; provided, that this Section 5.4(g) shall cause its respective representatives to, immediately cease and not be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect deemed to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder permit the prompt return or destruction of all confidential information previously furnished Company Board to such Person or its representativesmake an Adverse Recommendation Change except to the extent otherwise permitted by this Section 5.4.
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each a) Stockholder shall not, and shall cause its respective representatives Representatives not to, directly or indirectly, (i) (A) solicit, initiate, or propose the making, submission or announcement of, or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) ), or take any other action to knowingly facilitate, any inquiries relating to, the submission of any Takeover Proposal of, or the making of of, any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any consummation of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal which would constitute an Alternative Transaction or (iiiB) enter intofail to terminate any direct or indirect solicitation, approve or recommend any understandingencouragement, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person persons (other than ParentParent or Merger Sub and their Representatives) conducted theretofore that may be ongoing with respect to a proposal for an Alternative Transaction, including terminating all access granted to any such person or its representatives to any physical or electronic dataroom, (ii) engage in, participate in or otherwise continue any discussions or negotiations, or cooperate in any way with any person (or group of persons), with respect to any Takeover Proposal and request from each Person that has executed a confidentiality inquiries relating to, or the making of, any proposal the consummation of which would constitute an Alternative Transaction, (iii) amend or grant any waiver or release under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Company or its Subsidiaries (provided that Company shall be permitted on a confidential non-public basis to release or waive any explicit or implicit standstill or similar agreement solely to the extent necessary to permit the relevant party thereto to submit a proposal for an Alternative Transaction to the Company Board on a confidential nonpublic basis and solely to the extent the Company Board determines in good faith that the failure to do so would be a breach of the Company Board’s fiduciary duties under Applicable Law, so long as Company promptly (and in any event within twenty-four (24) hours) notifies Parent in writing of any such waiver or release) or (iv) approve, authorize, agree or publicly announce an intention to do any of the foregoing..
(b) During the Support Period Stockholder shall promptly (and, in any event, within twenty-four (24) hours) notify Parent in writing of any request for information, proposal or inquiry relating to an Alternative Transaction, the prompt return material terms and conditions of such request, proposal or destruction inquiry (including any changes thereto) and the identity of the person making such request, proposal or inquiry. Stockholder shall (i) keep Parent reasonably informed of the status and details (including amendments or proposed amendments) of any such request, proposal or inquiry on a reasonably current basis and (ii) provide to Parent as soon as reasonably practicable after receipt or delivery (but in no event later than twenty-four hours after receipt or delivery) thereof copies of all confidential information previously furnished correspondence and other written materials exchanged between Stockholder or any of its Representatives, on the one hand, and any person making such request or proposal or any of its Representatives, on the other hand, in each case relating to any such Person request, proposal or its representativesinquiry. Notwithstanding the foregoing, Stockholder shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 1 contract
No Solicitation. Except (a) The Company shall, and shall cause its Subsidiaries and direct their respective Representatives to, immediately cease any and all discussions or negotiations with any Persons conducted heretofore with respect to the extent the Company would be permitted under Section 6.04 any Acquisition Proposal, and promptly thereafter, deliver a written notice to each such Person, and to any other Person that entered into a confidentiality agreement in anticipation of the Merger Agreement to take such actions at the applicable time potentially making an Acquisition Proposal (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with which confidentiality agreement is still in connection therewith), from effect as of the date of this Agreement), to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Acquisition Proposal, effective on the date hereof, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries in accordance with the terms of the applicable confidentiality agreement with such Person.
(b) Subject to Section 6.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the Effective Time or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Section 10.1 and the Effective Time, the Company and its terms, each Stockholder Subsidiaries shall not, and nor shall cause its they authorize or direct any of their respective representatives not directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other authorized agent or representative retained by any of them (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate induce or knowingly encourage (including by way of furnishing non-public information) or assist the making, submission of any Takeover Proposal or the making announcement of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; , (ii) conductfurnish to any Person (other than Parent, continue, engage in, solicit, Acquisition Sub or otherwise participate in any discussions designees of Parent or negotiations with, disclose Acquisition Sub) any non-public information relating to the Company or any of its Subsidiaries toSubsidiaries, or afford to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, books or records of the Company or any of its Subsidiaries Subsidiaries, in any such case with the intent to induce, encourage or assist the making, submission or announcement of, any proposal or offer that constitutes, or could reasonably be expected to lead to, or participate an Acquisition Proposal, (iii) engage in, facilitate, encourage, continue or otherwise participate in any discussions or negotiations with any Person in connection with or for the purpose of knowingly assist facilitating any effort by, Acquisition Proposal or any third party proposal or offer that could reasonably be expected to makelead to an Acquisition Proposal, (iv) grant any waiver, amendment or release under any standstill agreement or Takeover Law for the purpose of allowing a third party to make an Acquisition Proposal (including providing consent or authorization to any Person to make an Acquisition Proposal to any officer or employee of the Company or to the Company Board or any member thereof), (v) approve, endorse or recommend an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or has made, any Takeover Proposal or (iiiv) enter into, approve or recommend into any understandingletter of intent, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership acquisition agreement or other similar Contract contemplating or otherwise relating to an Acquisition Proposal or any Takeover Proposalproposal or offer that could reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.2(c)).
(c) Notwithstanding anything to the contrary set forth in Section 6.2(b), prior to the Acceptance Time, the Company, the Company’s Subsidiaries and the Company’s Representatives may (i) participate or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing engage in discussions or negotiations with any Person or group of Persons that has made a bona fide, unsolicited written Acquisition Proposal (other than Parentwhich Acquisition Proposal does not arise out of any material breach of this Section 6.2), (ii) conducted theretofore with respect grant a limited waiver, amendment or release under any standstill agreement for the sole purpose of allowing any Person or group of Persons to make a written Acquisition Proposal or a proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (including providing consent or authorization to any Takeover Person to make an Acquisition Proposal and request from each or such other proposal or offer to any officer of the Company or to the Company Board or any member thereof) and/or (iii) furnish to any Person or group of Persons that has executed made a confidentiality agreement bona fide, unsolicited written Acquisition Proposal or a proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (which Acquisition Proposal or such other proposal or offer does not arise out of any material breach of this Section 6.2) any non-public information relating to the Company and/or any of its Subsidiaries and/or afford to any such Person or group of Persons access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or any of its Subsidiaries, in each case under this clause (iii) pursuant to an Acceptable Confidentiality Agreement; provided, that, prior to taking any action described in the preceding clauses (i) or (iii), the Company Board (or any authorized committee thereof) shall have determined in good faith, based on information then available and after consultation with its financial advisor and outside legal counsel, that such Stockholder Acquisition Proposal or such other proposal or offer either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal; and provided, further, that in the prompt return case of any action taken pursuant to the preceding clauses (i), (ii) or destruction (iii), (A) the Company gives Parent written notice of all confidential the identity of such Person or group of Persons and the material terms of such Acquisition Proposal or such other proposal or offer (unless such Acquisition Proposal or such other proposal or offer is in written form, in which case the Company shall give Parent a copy thereof), and (B) contemporaneously with furnishing any non-public information previously furnished to such Person or group of Persons, the Company furnishes such non-public information to Parent (which may be by posting such information to a “virtual data room” available to Parent and its representativesRepresentatives) to the extent such information has not been previously furnished to Parent.
(d) If the Company becomes aware of any receipt by the Company of (i) any Acquisition Proposal, or (ii) any request for information or any inquiry with respect to, or which would reasonably be expected to lead to, an Acquisition Proposal, the Company shall promptly (and, in any event, within one (1) Business Day of the Company’s Knowledge of any such event) notify Parent of the terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group of Persons making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a prompt basis of any material change in the status or terms of any such Acquisition Proposal, request or inquiry. Without limiting the generality of the foregoing, the Company shall provide to Parent, as soon as practicable and in any event within one (1) Business Day after receipt or delivery thereof, copies of all draft agreements (and any other written material to the extent such material contains any financial terms, conditions or other material terms relating to any Acquisition Proposal) provided to the Company, any of its Subsidiaries or any of its Representatives by such Person or group of Persons making any such Acquisition Proposal, request or inquiry.
Appears in 1 contract
Sources: Agreement and Plan of Merger (McCormick & Schmicks Seafood Restaurants Inc.)
No Solicitation. Except (a) Prior to the extent Effective Time, the Company would be permitted under Section 6.04 agrees that neither it, any of its Subsidiaries or its affiliates, nor any of the Merger Agreement to take such actions at respective directors, officers, employees, agents or representatives of the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective representatives not toforegoing will, directly or indirectly, (i) solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing or disclosing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constituteswith respect to any merger, consolidation or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to other business combination involving the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records material Subsidiary of the Company or the acquisition of any securities of the Company or all or any material assets (including stock of a subsidiary) of the Company and the Subsidiaries of the Company taken as a whole (an "Acquisition Transaction") or negotiate, explore or otherwise engage in discussions with any person (other than Parent and its representatives) with respect to any Acquisition Transaction or enter into any agreement, arrangement or understanding with respect to any such Acquisition Transaction or which would require it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, however, that the Company may, in response to an unsolicited written proposal from a third party with respect to an Acquisition Transaction, furnish information to and engage in discussions with such third party, in each case only if the Board of Directors of the Company determines in good faith by a majority vote, after consultation with its financial advisors and based upon the advice of outside counsel to the Company, that failing to take such action would result in a breach of the fiduciary duties of the Board of Directors and, prior to taking such action, the Company (i) provides reasonable notice to Parent to the effect that it is taking such action and (ii) receives from such corporation, partnership, person or other entity or group (and delivers to Parent) an executed confidentiality agreement in reasonably customary form. The Company agrees that as of the date hereof, it, its Subsidiaries toand affiliates, or participate inand the respective directors, facilitateofficers, encourageemployees, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any agents and representatives of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person person (other than ParentParent and its representatives) conducted theretofore heretofore with respect to any Takeover Proposal Acquisition Transaction. The Company agrees to immediately advise Parent in writing of any inquiries or proposals (or desire to make a proposal) received by any such information requested from, or any such negotiations or discussions sought to be initiated or continued with, any of it, its Subsidiaries or affiliates, or any of the respective directors, officers, employees, agents or representatives of the foregoing, in each case from a person (other than Parent and request from each Person that has executed a its representatives) with respect to an Acquisition Transaction, and the terms thereof, including the identity of such third party, and to update n an ongoing basis or upon Parent's request, the status thereof, as well as any actions taken or other developments pursuant to this Section 7.2(a). Notwithstanding anything in the foregoing provisions of this Section 7.2(a) to the contrary: (i) the Company shall not disclose any information received by it or any of its directors, officers, employees, agents or representatives pursuant to the Confidentiality Agreement or any other confidentiality or other similar agreement between the Company and Parent to any person in violation of such agreement and (ii) the Company shall not be obligated to disclose to Parent any confidential information provided to the Company by any third party in violation of any law or any confidentiality agreement between the Company and such third party provided for in this Section 7.2.
(b) Except as set forth in this Section 7.2(b), the Board of Directors of the Company shall not (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Parent or the Sub, the approval or recommendation by the Board of Directors of this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Transaction or (iii) cause the Company to enter into any agreement with respect to any Acquisition Transaction. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company determines in its good faith reasonable judgment, by a majority vote, after consultation with its financial advisors, that the Acquisition Transaction is more favorable to the stockholders of the Company than the Merger and, based upon the advice of outside counsel to the Company, that such Stockholder action is required by the prompt return fiduciary duties of the Board of Directors, the Board of Directors of the Company may withdraw or destruction modify its approval or recommendation of all confidential information previously furnished this Agreement and the Merger, approve or recommend such Acquisition Transaction or (subject to Section 9.2(b)) cause the Company to enter into an agreement with respect to such Person or its representativesAcquisition Transaction, but only if the Company gives Parent at least five business days' prior written notice thereof, during which time Parent may make, and, in such event, the Company shall in good faith consider, a counter proposal to such Acquisition Transaction.
Appears in 1 contract
No Solicitation. Except to (a) Until the extent the Company would be permitted under Section 6.04 earlier of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, Closing or the termination of this Agreement in accordance with its termspursuant to ARTICLE IX, each Stockholder neither the Company nor any of the Members shall notdirectly or indirectly, and shall cause its not authorize or permit their respective representatives not Affiliates and Representatives to, directly or indirectly, (i) solicit, initiate, propose encourage, induce or knowingly take any action to facilitate the making, submission or encourage (including by way of furnishing non-public information) the submission announcement of any Takeover Proposal inquiries or the making of any proposal or offer contemplating or otherwise relating to an Acquisition Transaction (an “Acquisition Proposal”) or take any action that constitutes, or could reasonably be expected to lead toto an Acquisition Proposal, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in furnish any discussions or negotiations with, disclose any non-public information relating to regarding the Company to any Person in connection with or any in response to an Acquisition Proposal or an inquiry or indication of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party interest that could reasonably be expected to makelead to an Acquisition Proposal, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement engage in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person with respect to a potential Acquisition Transaction or an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or Acquisition Transaction, or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Proposal or Acquisition Transaction. Without limiting the generality of the foregoing, the Company and the Members acknowledge and agree that any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any Affiliate or Representative of the Company or the Members, as applicable, whether or not such Affiliate or Representative is purporting to act on behalf of the Company or any Member, as applicable, shall be deemed to constitute a breach of this Section 5.11 by the Company.
(b) The Company and the Members shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise the Purchaser orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to the Company (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company and the Members shall keep the Purchaser fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(c) The Company and the Members shall, and shall cause each of their respective Affiliates and Representatives to, immediately cease and cause to be terminated any existing discussions with any Person (other than Parentthe Purchaser) conducted theretofore with respect that relate to any Takeover Proposal and Acquisition Proposal. The Company shall promptly request from each Person that has executed executed, within 12 months prior to the date of this Agreement, a confidentiality confidentiality, standstill or similar agreement in connection with such Stockholder the prompt its consideration of a possible Acquisition Transaction to return or certify the destruction of all confidential information Confidential Information previously furnished to such Person by or its representativeson behalf of the Company.
Appears in 1 contract
Sources: Equity Purchase Agreement (Adial Pharmaceuticals, Inc.)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from From the date of this Agreement hereof until the Effective Time or, if earlier, earlier of the termination of this Agreement in accordance with pursuant to its termsterms or the Closing Date, each Stockholder shall notthe Company, SCHS, PM, CLSC and the Shareholders agree that neither they nor any of their Subsidiaries nor any of their officers and directors or those of their Subsidiaries shall, and that the Company, SCHS, PM, CLSC and the Shareholders shall use its reasonable best efforts to cause their and their Subsidiaries’ Employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its respective representatives Subsidiaries) (collectively, “Representatives”) not to (and shall not authorize any of them to), directly or indirectly, : (i) solicit, initiate, propose encourage, knowingly facilitate or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Takeover Acquisition Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter intoengage in discussions with any Person with respect to any Acquisition Proposal, approve except as to the existence of the provisions of this Section 6.19, (iv) approve, endorse or recommend any understandingAcquisition Proposal, agreement in principle, or (v) enter into any letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement intent or other similar document or any Contract contemplating or otherwise relating to any Takeover Acquisition Proposal, or agree or commit to or agree to facilitate any of . The Sino-Canada Entities and the foregoing. Each Stockholder shall, and shall cause its respective representatives to, Shareholders will immediately cease and be terminated any and all existing activities, discussions or negotiations with any Person (other than Parent) third parties conducted theretofore heretofore with respect to any Takeover Acquisition Proposal and request with respect to itself. “Acquisition Proposal” shall mean any offer or proposal, relating to any transaction or series of related transactions involving: (A) any purchase from each Person that has executed a confidentiality agreement with such Stockholder the prompt return Company or destruction of all confidential information previously furnished to such acquisition by any Person or its representatives“group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of more than a ten percent (10%) interest in the total outstanding voting securities of the Sino-Canada Entities or any tender offer or exchange offer that if consummated would result in any Person or group beneficially owning ten percent (10%) or more of the total outstanding voting securities of the Sino-Canada Entities or any merger, consolidation, business combination or similar transaction involving the Sino-Canada Entities, (B) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than ten percent (10%) of the assets of the Sino-Canada Entities (taken as a whole), or (C) any liquidation or dissolution of the Company; provided, however, that neither discussions with Purchaser nor the transactions contemplated by this Agreement shall be deemed an Acquisition Proposal.
Appears in 1 contract
Sources: Plan of Reorganization and Share Exchange Agreement (Hartcourt Companies Inc)
No Solicitation. Except (a) The Company has agreed that, in light of the consideration given by its Board of Directors prior to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date execution of this Agreement until to various alternatives to the Effective Time or, if earliertransactions contemplated by this Agreement, the termination of this Agreement in accordance with its terms, each Stockholder Company shall not, and nor shall cause its respective representatives not it permit any of the Company Subsidiaries to, directly nor shall it authorize or indirectlypermit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of the Company Subsidiaries to, (i) solicit, initiate, propose or knowingly encourage the submission of, any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Takeover Proposal; (ii) conductprovided, continue-------- however, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating that to the extent required by the fiduciary obligations of ------- the Board of Directors of the Company, as determined in good faith by a majority of the disinterested members thereof based on the written advice of outside counsel, the Company or may, in response to an unsolicited request, take such actions permitted by Section 5.9(b) -------------- subject to all restrictions therein. Without limiting the foregoing, it is understood that any violation of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records restrictions set forth in the preceding sentence by any executive officer of the Company or any of its the Company Subsidiaries toor any investment banker, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement attorney or other Contract relating to any Takeover Proposal, advisor or agree representative of the Company or commit to or agree to facilitate any of the foregoingCompany Subsidiaries, whether or not such person is purporting to act on behalf of the Company or any of the Company Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.9(a) by the Company. Each Stockholder shall-------------- For purposes of this Agreement, the term "Takeover Proposal" means any bona fide proposal or offer (whether or not in writing and shall cause its respective representatives towhether or not delivered to the stockholders of the Company generally) for a merger or other business combination involving the Company or any of the Company Subsidiaries or any proposal or offer to acquire in any manner, immediately cease directly or indirectly, an equity interest (including any option to acquire an equity or voting interest and any convertible debt or other interest which may be terminated converted into such an equity or voting interest) in, any and all existing discussions voting securities of, or negotiations with a substantial asset of the Company or any Person (of the Company Subsidiaries, other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously furnished to such Person or its representativestransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Globex Mining Enterprises Inc /Fi)
No Solicitation. Except (a) Subject to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date provisions of this Agreement until the Effective Time orSection 5.8, if earlier, the termination Bank of this Agreement in accordance with its terms, each Stockholder shall York will not, and shall will use commercially reasonable efforts to cause its respective officers, directors, employees, Affiliates, agents and other representatives (collectively, “Representatives”) not to, directly or indirectly, indirectly (i) solicitinitiate or solicit or Knowingly encourage or facilitate any inquiries or proposals with respect to, initiateor the making of, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission of any Takeover Acquisition Proposal or the making of any proposal that constitutescould reasonably be expected to lead to any Acquisition Proposal, (ii) engage, enter into, continue or otherwise participate in negotiations or discussions with, or provide any information or data to, any Person relating to an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (iv) enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal or requiring Bank of York to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger (a “Bank of York Acquisition Agreement”) (other than a confidentiality agreement contemplated by Section 5.8(b)) (provided, however, that the foregoing shall not prohibit Bank of York or its Representatives from informing any Person of the restrictions of this Section 5.8 or from contacting any Person who has made an Acquisition Proposal or inquiry or proposal relating thereto solely for the purpose of seeking clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, any Takeover Proposal; (ii) conduct, continue, engage in, solicit, or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover a Superior Proposal, or agree or commit to or agree to facilitate and any such actions shall not be a breach of the foregoingthis Section 5.8). Each Stockholder Bank of York shall, and shall cause each of its respective representatives Representatives to, (i) immediately cease and be terminated any and all existing solicitations, discussions or negotiations with any Person (other than ParentInvestar or its Affiliates) conducted theretofore before the date of this Agreement with respect to any Takeover Acquisition Proposal and promptly request from each Person that has executed a confidentiality agreement with such Stockholder the prompt return or destruction of all confidential information previously related thereto, (ii) except to the extent the Bank of York board of directors determines in good faith (after consultation with its legal counsel) that such action is consistent with the Bank of York board of directors’ fiduciary duties under applicable law, 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 Representatives is a party and (iii) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary in Section 5.8(a), at any time prior to obtaining the Requisite Shareholder Approval, in the event Bank of York receives an unsolicited, bona fide Acquisition Proposal in writing from a third party (which has not been withdrawn), Bank of York may engage in discussions and negotiations (including exchanging draft agreements) with, furnish or cause to be furnished any information and data to, and afford access to its personnel, properties, books and records, to the Person making such Acquisition Proposal and its Representatives if (i) the Bank of York board of directors has determined in good faith (after consultation with its legal counsel and financial advisor) that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal, and (ii) the Bank of York board of directors determines in good faith, (after consultation with its legal counsel) that the failure to take such action would be more likely than not to result in a violation of the Bank of York board of directors’ fiduciary duties under applicable law; provided, however, that, prior to providing any nonpublic information to such Person or participating in discussions or negotiations with such Person, Bank of York shall have entered into a confidentiality agreement (which confidentiality agreement shall not constitute a Bank of York Acquisition Agreement and a copy of which confidentiality agreement shall be promptly provided for informational purposes only to Investar) with such Person on terms that are no more favorable to such Person than the confidentiality provisions of Article VII and that any nonpublic information concerning Bank of York provided to such Person, to the extent not previously provided to Investar, is promptly provided to Investar. In addition, nothing herein shall restrict Bank of York from complying with its representativesdisclosure obligations with regard to any Acquisition Proposal under applicable law.
(c) Bank of York will notify Investar promptly (and in any event within 48 hours) after receipt of any Acquisition Proposal or any material modification of or material amendment to any Acquisition Proposal, or any request for non-public information relating to Bank of York or for access to the personnel, properties, books or records of Bank of York by any Person that has made, or to the Knowledge of Bank of York, may be considering making, an Acquisition Proposal, which notice shall include the material terms of and identity of the Person(s) making such Acquisition Proposal. Bank of York will (subject to the fiduciary duties of the Bank of York board of directors) keep Investar reasonably informed of the status and material terms and conditions of any such Acquisition Proposal and of any material amendments thereto.
(d) Except as provided in Section 5.9, the Bank of York board of directors shall not fail to make at any time required by this Agreement, withdraw, amend, modify or materially qualify, in a manner adverse to Investar, the Bank of York Board Recommendation, or adopt, approve or publicly recommend an Acquisition Proposal, or make any public statement inconsistent with the Bank of York Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a “Change in Recommendation”).
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No Solicitation. Except to the extent the (a) The Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (and subject to compliance with the notice, disclosure and other obligations that the Company would be required to comply with in connection therewith), from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall cause its respective not authorize or permit any Company Subsidiary, or any officers, directors, employees, agents, or representatives not of the Company or any Company Subsidiary (including, without limitation, any investment banker, financial advisor, attorney or accountant retained by the Company or any Company Subsidiary), to, directly or indirectly, (i) initiate, solicit, initiate, propose or knowingly take any action to facilitate or encourage (including by way of furnishing non-public information) the submission information or assistance), or take any other action to facilitate, any inquiries, any expression of any Takeover Proposal interest, or the making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or enter into or maintain or continue discussions or negotiations regarding any Acquisition Proposal, or furnish, disclose or afford access to any person or entity any information or to the properties, books or records of the Company or any Company Subsidiary for the purposes of encouraging or facilitating any Acquisition Proposal or agree to or endorse any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Agreement, the Company may, to the extent failure to do so would reasonably be expected to result in a breach of the fiduciary obligations of the Company Board under Applicable Law, as determined in good faith by the Company Board (acting by a majority of the entire board) after consultation with its independent financial advisor and based upon the opinion of outside counsel, in response to a Superior Proposal that did not result from a breach by the Company of this Section 6.5, and subject to compliance with Section 6.5(c), (x) furnish information with respect to the Company to the person making such Acquisition Proposal and its Representatives pursuant to a confidentiality or standstill agreement not more favorable to such other party than the Confidentiality Agreement and (y) participate in discussions or negotiations with such person and its Representatives regarding any Acquisition Proposal. Without limiting the foregoing, the Company agrees that any breach of the restrictions set forth in this Section 6.5 by any Company Subsidiary or Affiliate of the Company or any Representative of the Company shall be deemed to be a breach by the Company of this Section 6.5.
(b) Unless the Company terminates this Agreement in accordance with Section 9.1(b)(ii) simultaneously with the execution of a definitive agreement for a Superior Proposal, neither the Company nor the Board of Directors or any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent and Parent Americas, the approval or recommendation by such Board of Directors or such committee of this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (iii) authorize the Company to enter into any agreement with respect to an Acquisition Proposal.
(c) In addition to the obligations of the Company set forth elsewhere in this Section 6.5, the Company shall immediately (and no later than 48 hours) advise Parent and Parent Americas orally (with such oral advice to be promptly confirmed in writing) of any request for information or of any inquiry with respect to an Acquisition Proposal and the material terms and conditions of such request, inquiry or Acquisition Proposal. The Company will promptly keep Parent and Parent Americas informed of the status and details (including amendments or changes or proposed amendments or changes) of any such request, inquiry or Acquisition Proposal.
(d) The Company shall, and shall direct its representatives to, cease immediately and cause to be terminated all solicitation, activity, discussions and negotiations that commenced prior to the date of this Agreement with any Persons (other than Parent and Parent Americas or any of their affiliates or associates) regarding any proposal that constitutes, or could reasonably be expected to lead to, any Takeover an Acquisition Proposal; .
(iie) conduct, continue, engage in, solicit, or otherwise participate The Company shall promptly request in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party writing that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has heretofore executed a confidentiality agreement at any time on or after January 1, 2002 in connection with such Stockholder its consideration of acquiring the prompt Company (other than Parent and Parent Americas or any of their Affiliates) or any portion thereof return or destruction of to the Company all materials containing confidential information previously heretofore furnished to such Person by or on behalf of the Company, or present the Company with reasonable evidence that those materials have been destroyed (to the extent destruction of such materials is permitted by such confidentiality agreement) and the Company shall use its representativescommercially reasonable efforts to have such materials returned or destroyed (to the extent destruction of such materials is required by such confidentiality agreement).
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